| |
[p.55]
The Court,
composed as above,
delivers the following Judgment:
In a letter of July 9th, 1957, received in the Registry on July 10th, 1957,
the Minister for Foreign Affairs of the Netherlands transmitted an
Application dated July 9th, 1957, instituting proceedings in a dispute with
the Government of the Kingdom of Sweden concerning the application of the
Convention of 1902 governing the guardianship of infants. At the same time,
the Minister for Foreign Affairs of the Netherlands notified the Registry of
the appointment of M. W. Riphagen as Agent for the Netherlands Government in
the case. [p 57]
The Application thus filed in the Registry on July 10th, 1957, expressly
refers to Article 36, paragraph 2, of the Statute of the Court and to the
acceptance of the compulsory jurisdiction of the International Court of
Justice by the Kingdom of Sweden on April 6th, 1957, and by the Kingdom of
the Netherlands on August 1st, 1956. It refers to a measure taken and
maintained by the Swedish authorities in respect of the infant Marie
Elisabeth Boll, a Dutch national, born at Norrkoping on May 7th, 1945, of
the marriage of Johannes Boll, of Dutch nationality, and Gerd Elisabeth
Lindwall, who died on December 5th, 1953, and who was of Swedish nationality
before her marriage. The Application alleges that the Swedish authorities
acted contrary to the provisions of the Convention of 1902 governing the
guardianship of infants, which provisions are based on the principle that
the national law of the infant is applicable and the national authorities
are competent.
Pursuant to Article 40, paragraph 2, of the Statute, the Application was
communicated to the Government of the Kingdom of Sweden and, pursuant to
paragraph 3 of the same Article, other Members of the United Nations as well
as non-member States entitled to appear before the Court were notified of
it.
Since the Application referred to the provisions of the Convention governing
the guardianship of infants, signed at The Hague on June 12th, 1902, the
States other than those concerned in the case which are parties to the
Convention were notified in accordance with Article 63, paragraph 1, of the
Statute.
Time-limits for the filing of the Memorial and Counter-Memorial were fixed
by an Order of the President of the International Court of Justice of August
19th, 1957, and time-limits for the filing of the Reply and the Rejoinder
were fixed by an Order of the Court of April 17th, 1958.
The pleadings having been filed within the time-limits fixed by these
Orders, the case was ready for hearing on the date of the expiry of the last
time-limit, namely, August 28th, 1958.
M. Fredrik Julius Christian Sterzel, former Judge of the Supreme Court of
Sweden, and M. Johannes Offerhaus, Professor of Private International Law at
the University of Amsterdam, were respectively chosen, in accordance with
Article 31, paragraph 3, of the Statute, to sit as Judges ad hoc in the
present case by the Government of the Kingdom of Sweden and the Government
of the Kingdom of the Netherlands.
At the opening of the hearing on September 25th, 1958, the Court heard the
solemn declarations made, in accordance with Article 20 of the Statute and
Article 5 of the Rules of Court, by MM. Sterzel and Offerhaus, Judges ad
hoc.
In the course of hearings held on September 25th, 26th, 29th and 30th, and
October 1st, 3rd and 4th, 1958, the Court heard the oral arguments and
replies of M. Riphagen and Professor Kisch, on behalf of the Government of
the Netherlands, and of M. Dahlman, [p 58] Professor Rolin and M. Petren, on
behalf of the Government of Sweden.
During the written and oral proceedings the following Submissions were
presented by the Parties:
On behalf of the Government of the Netherlands, in the Application:
"May it please the Court:
To take note that for the purpose of all notifications and communications
relating to the present case, the Agent for the Government of the Kingdom of
the Netherlands selects as his address for service the Ministry for Foreign
Affairs at The Hague;
To notify the present Application, in accordance with Article 40, paragraph
2, of the Statute of the Court to the Government of the Kingdom of Sweden;
To adjudge and declare, whether the Government of the Kingdom of Sweden
appears or not, and after such time-limit as, subject to proposals made by
agreement between the Parties, it will be for the Court to fix:
That the measure taken and maintained by the Swedish authorities in respect
of Marie Elisabeth Boll, namely, the 'skyddsupp-fostran' instituted and
maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th,
1954, June 3rd, 1955, and February 21st, 1956, is not in conformity with the
obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the
1902 Convention governing the guardianship of infants;
That Sweden is under an obligation to end this measure."
On behalf of the Government of the Netherlands, in the Memorial:
"The Netherlands Government submit that the Court should adjudge and
declare:
That the measure taken and maintained by the Swedish authorities in respect
of Marie Elisabeth Boll, namely, the 'skyddsupp-fostran' instituted and
maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th,
1954, June 3rd, r955, and February 21st, 1956, is not in conformity with the
obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the
1902 Convention governing the guardianship of infants;
That Sweden is under an obligation to end this measure."
On behalf of the Government of Sweden, in the Counter-Memorial:
"The Swedish Government respectfully prays the Court to declare that the
claim of the Government of the Netherlands is unfounded."
On behalf of the Government of the Netherlands, in the Reply:
"The protective education in respect of Marie Elisabeth Boll is not in
conformity with the obligations binding upon Sweden vis-à-vis the
Netherlands by virtue of the 1902 Convention governing the guardianship of
infants, on the following grounds:
I. that the protective education affects Netherlands guardianship, fully
covered by the Convention; [p 59]
II. that ordre public cannot prevail against the Convention, because
A. ordre public generally cannot overrule conventions, and
B. even if ordre public could overrule conventions, the conditions for
ordre public have not been complied with, since, in the present case,
1. there is no substantive connection between the situation and Sweden;
2. no facts have been stated that warrant and bear out a departure from the
normal application of conflict rules.
Therefore, Sweden is under the obligation to discontinue the protective
education.�
On behalf of the Government of Sweden, in the Rejoinder:
"That it may please the Court
To declare that the measure of protective upbringing decreed in respect of
Marie Elisabeth Boll has in no way contravened the obligations binding upon
Sweden vis-à-vis the Netherlands under the 1902 Convention governing the
guardianship of infants
1. because the rights to custody and control, the exercise of which has been
temporarily impeded as a result of the said measure, are rights outside the
scope of guardianship as understood in the said Convention:
(a) in the case of the right of M. Johannes Boll to custody and control,
because that right was his independently of the said guardianship,
(b) in the case of the right of Mme Postema to custody and control, the
right having devolved upon her in consequence of a judicial decision in the
Netherlands which was con-cerned with the right of M. Johannes Boll to
custody and control and which was accordingly not covered by the Convention;
2. because the protective measure decreed in respect of a foreign child on
Swedish territory was decreed by virtue of a Swedish rule of public law, the
application of which is outside the scope of the rules of conflict of laws
contained in the 1902 Convention.
In the premises, to hold that the Submissions of June 18th, 1958, of the
Agent for the Government of the Netherlands are inadmissible and
ill-founded.
To hold inadmissible the Submission of the Government of the Netherlands
seeking a declaration that the Swedish Government has not established the
existence of circumstances which would justify the measure complained of.
In the alternative on the last point
If the Court should deem it necessary to take cognizance of the reasons for
the Swedish administrative decisions concerned with the measure in dispute,
to place on record that the Agent for the Swedish Government should be
prepared to produce the administra-[p60]tive file in this case in such
manner and subject to such conditions as the Court may prescribe."
On behalf of the Government of Sweden, at the hearing of October 1st, 1958:
"May it please the Court
As to admissibility:
to hold
(1) that the rights pertaining to custody and control, to upbringing and
all other rights exercised by Johannes Boll over the person of his daughter
until August 5th, 1954, derived from his puissance paternelle and not from
guardianship within the meaning of the 1902 Convention; that this was more
particularly so in the present case inasmuch as on his application his
guardianship was originally instituted in accordance with Swedish law which
does not regard as falling within this institution rights relating to the
person of the child; that the decision of May 5th, 1954, could accordingly
not infringe any rights protected by the Convention;
(2) that when the Dutch authorities had subsequently instituted the
guardianship of Johannes Boll in accordance with the law of the Netherlands
and later released Johannes Boll from his functions, replacing him by
Catherine Postema, the Swedish Courts terminated the guardianship instituted
by them;
(3) that notwithstanding, Sweden not being bound by the 1902 Convention to
recognize the validity of the Dutch decision putting an end to the puissance
paternelle of Johannes Boll, nor consequently of the transfer of these
rights to Catherine Postema, any breach of those rights would not constitute
a violation of the Convention;
As to the merits:
to hold
that the rules pertaining to conflict of laws which form the subject-matter
of the 1902 Convention on the guardianship of infant children do not affect
the right of the High Contracting Parties to impose upon the powers of
foreign guardians, as indeed of foreign parents, the restrictions called for
by their ordre public;
that these rules leave unaffected in particular the competence of the
administrative authorities responsible for the public service of the
protection of children;
that the measure of protective upbringing taken in respect of Elisabeth Boll
cannot accordingly in any way have contravened the 1902 Convention relied
upon by the Netherlands;
that it is furthermore not for the Court, in the absence of any allegation
of denial of justice, to judge the grounds on which the competent Swedish
authorities decided to decree or to maintain the said measure; [p 61]
In the premises,
May it please the Court
to declare that the claim is neither admissible nor well-founded;
in the alternative,
before adjudication, to invite the Respondent to produce the file of the
administrative enquiries which led to the disputed decisions."
On behalf of the Government of the Netherlands, at the hearing of October
3rd, 1958:
"May it please the Court to declare".
I. that the 'skyddsuppfostran' (protective education) curtails Netherlands
guardianship as protected by the 1902 Convention governing the guardianship
of infants;
II. that ordre public cannot prevail against the Convention, because ordre
public generally cannot be invoked against conventions;
III. that, even if ordre public could be invoked against the Convention:
A. the Court, in virtue of its powers under the Statute, is fully competent
to appreciate, in the light of all the relevant facts and circumstances and
the nature of the municipal legal provisions applied thereto, whether or not
the conditions for ordre public have been complied with;
B. in the present issue ordre public is not warranted,
i. either by the character of the case,
ii. or by the character of the provision of Swedish law as applied to the
case.
Therefore
May it please the Court
to adjudge and declare:
that the measure taken and maintained by the Swedish authorities in respect
of Marie Elisabeth Boll, namely the 'skyddsuppfostran' instituted and
maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th,
1954, June 3rd, 1955, and February 21st, 1956, is not in conformity with the
obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the
1902 Convention governing the guardianship of infants;
That Sweden is under an obligation to end this measure."
The Submissions of the Parties, in the form in which they were presented on
October 1st and 3rd, 1958, respectively, constitute their final Submissions.
[p 62]
***
The dispute upon which the Court is called on to adjudicate has been clearly
defined by the Parties in their Pleadings and oral arguments. The Court has
before it a concrete case: did the Swedish authorities, by applying the
measure of protective upbringing (skyddsuppfostran) to the Dutch infant,
Marie Elisabeth Boll, fail to respect obligations resulting from the 1902
Convention on the guardianship of infants? The task of the Court is thus
limited. It is not concerned with the correctness of the application of the
Swedish Law of June 6th, 1924, on the protection of children and young
persons, nor has it to pass upon the proper appreciation of the grounds on
which the challenged decisions are based, or on the circumstances to which
those grounds are related. These questions are not within the terms of the
present dispute and would raise points which are outside the proceedings.
***
The final Submissions of the Government of the Netherlands, before asking
the Court to adjudge and declare that Sweden, in taking and maintaining the
measure complained of, is in breach of its obligations under the 1902
Convention, ask it to "declare" certain propositions relating to the effect
of protective upbringing and to ordre public. These propositions are, in
reality, the essential considerations which, in the view of the Government
of the Netherlands, must lead the Court to adjudge and declare that Sweden
is in breach of its obligations. In a less categorical form, the
Submissions of the Government of Sweden are set out in a similar way. The
Court has to adjudicate upon the subject of the dispute; it is not called
upon, as it pointed out in the Fisheries case, to pronounce upon a statement
of this kind (I.C.J. Reports 1951, p. 126). It retains its freedom to select
the ground upon which it will base its judgment, and is under no obligation
to examine all the considerations advanced by the Parties if other
considerations appear to it to be sufficient for its purpose.
***
The essential and undisputed facts underlying the present case are as
follows: Gerd Elisabeth Lindwall, the wife of Johannes Boll and mother of
Marie Elisabeth Boll, having died on December 5th, 1953, Johannes Boll, the
latter's father, thereupon became her guardian by the operation of Article
378 of the Civil Code of the Netherlands. On March 18th, 1954, on the
application of the father and without any reference then being made to the
Dutch nationality of the infant, the Second Chamber of the Court of First
Instance at [p 63] Norrkoping in Sweden registered the guardianship of the
father and appointed Emil Lindwall as god man of Marie Elisabeth, pursuant
to Swedish law of guardianship.
On May 5th, 1954, the Child Welfare Board at Norrkoping, confirming the
decision made on April 26th, 1954, by the President of the Board, decided to
place the infant under the regime of pro-tective upbringing under Article 22
(a) of the Swedish Law of June 6th, 1924.
The Amsterdam Cantonal Court, on June 2nd, 1954, appointed Jan Albertus
Idema, of Dutch nationality, residing at Dordrecht, deputy-guardian of the
infant, Marie Elisabeth Boll, her father being her guardian by operation of
law.
The latter, jointly with the deputy-guardian, appealed against the
institution of protective upbringing to the Provincial Government of
Ostergotland, which, by decision of June 22nd, 1954, confirmed the decision
of the Child Welfare Board.
On August 5th, 1954, the Court of First Instance of Dordrecht, upon the
application of the Guardianship Council of that town and with the consent of
Johannes Boll, discharged the latter from his functions as guardian of Marie
Elisabeth Boll and appointed Catharina Postema as guardian. The same
judgment ordered that the child should be handed over to the guardian.
The Second Chamber of the Norrkoping Court of First Instance, on September
16th, 1954, cancelled the previous registration of the guardianship of
Johannes Boll and ordered that guardianship should no longer be administered
according to Swedish law. In the same decision the Court dismissed an
application for the removal of Emil Lindwall as god man of the infant Marie
Elisabeth. The Court of Appeal of Gota, by decision of January 21st, 1955,
maintained the god man, but a judgment of the Supreme Court of July 2nd,
1955, quashed this decision and discharged the god man of his functions.
An appeal having been lodged by Johannes Boll, Jan Albertus Idema and
Catharina Postema, against the decision of the Provincial Government of
Ostergotland of June 22nd, 1954, the Supreme Administrative Court of Sweden,
by a judgment of October 5th, 1954, maintained the measure of protective
upbringing.
The Child Welfare Board of Norrkoping, having before them a letter from the
father of the infant Marie Elisabeth Boll, and an application by Jan
Albertus Idema, decided on June 3rd, 1955, to obtain a further medical
report before reviewing the measure of protective upbringing. On October
28th, 1955, the Provincial Government of Ostergotland, on appeal by
Catharina Postema and Jan Albertus Idema against this decision, ordered the
measure of protective upbringing to be terminated. On appeal by the Child
Welfare Board against that decision, the Supreme Administrative Court, by a
judgment of February 2ist, 1956, maintained the measure adopted by that
Board on June 3rd, 1955. [p 64]
These decisions given in Sweden and in the Netherlands relate to the
organization of guardianship and to the application of the Swedish Law on
the protection of children. The Court is not concerned with the decisions
relating to the organization of guardianship. The dispute relates to the
Swedish decisions which instituted and maintained protective upbringing. It
is of these decisions that the Government of the Netherlands complains, and
it is only upon them that the Court is called upon to adjudicate.
The Government of the Netherlands submits that these decisions are not in
conformity with the provisions of the 1902 Convention. The institution of
protective upbringing in the case of Marie Elisabeth Boll prevents the
infant from being handed over to the guardian for the exercise of her
functions. The 1902 Convention provides that the guardianship of an infant
shall be governed by his national law, and the Government of the Netherlands
draws the conclusion that the Swedish authorities could take no measure once
the national authorities had taken decisions organizing guardianship of the
infant. The limitation on the principle of the national law contained in
Article 7 of the Convention, according to the Government of the
Netherlands, is not applicable to the present case because Swedish
protective upbringing is not a measure permitted by that Article and because
the condition of urgency required by that provision has not been satisfied.
The Government of Sweden does not dispute the fact that protective
upbringing temporarily impedes the exercise of custody to which the guardian
is entitled by virtue of guardianship under Dutch law; this fact, however,
does not constitute a breach of the 1902 Convention or a failure by Sweden
to fulfil her obligations thereunder. In support of its contentions the
Government of Sweden relies upon the following grounds:
(1) The right to custody, at the time when the infant was placed under the
regime of'protective upbringing, belonged to her father, and it was in his
case an attribute of the puissance paternelle, which is not governed by the
1902 Convention on guardianship. In the circumstances in which guardianship
and the right to custody were conferred on Mme Postema, the 1902 Convention
is equally inapplicable to that right which was merely the continuation of
the father's right to custody.
(2) The Swedish Law for the protection of children of June 6th, 1924,
applies to every infant residing in Sweden, and the jurisdiction which that
Law confers upon the Swedish authorities remains outside the Convention,
which governs only conflicts of law and of jurisdiction in respect of the
guardianship of infants and which does not extend to the settlement of other
conflicts of law. The Law for the protection of children being a law within
the category of ordre public, the protective upbringing decreed by the
Swedish authorities does not constitute a breach of the 1902 Convention, the
Conven-[p 65]tion being incapable of affecting the right of the contracting
States to make the powers of a foreign guardian, as indeed foreign parents,
subject to the restrictions required by ordre public.
With reference to the first ground relied upon by the Swedish Government,
the Court observes that in the written and oral proceedings a distinction
appears to have been made between the period during which Johannes Boll was
invested with the guardianship of his daughter under Dutch law, the law
applicable in accordance with Article 1 of the 1902 Convention, and the
period after he had been released from guardianship when the latter was
entrusted to Mme Postema. That may lead to a distinction being drawn
between the original institution of the regime of protective upbringing in
respect of the infant and her. maintenance under this regime in face of the
guardianship conferred upon Mme Postema. The Court does not consider that it
need be concerned with this distinction. The grounds for its decision are
applicable to the whole of the dispute.
The Court has before it a measure taken in pursuance of the Swedish Law of
June 6th, 1924, on the protection of children and young persons. It has to
consider this measure in the light of what it was the intention of the
Swedish Law to establish, to compare it with the guardianship governed by
the 1902 Convention and to determine whether the application and the
maintenance of the measure in respect of an infant whose guardianship falls
within that Convention involve a breach of the Convention.
It has been contended that the measure is one "virtually amounting to
guardianship", that it constitutes a "rival guardianship" in competition
with the Dutch guardianship so that the latter, as a result of the measure,
"is completely absorbed, whittled away, overruled and frustrated".
To judge of the correctness of this argument it is necessary to consider the
attitude adopted with regard to the Dutch guardianship by the judgments
given in Sweden.
So far as the administration of property is concerned, the judgment of the
Norrkoping Court of September 16th, 1954, and the judgment of the Supreme
Court of July 2nd, 1955, both proceeded on the basis of recognition of the
Dutch guardianship. With regard to the capacity of the guardian to concern
herself with the person of the infant, that capacity was recognized in the
decision of the Supreme Administrative Court of October 5th, 1954, given on
an appeal lodged by the guardian; reference was there made to the fact that
the decision of the Dordrecht Court, appointing Mme Postema as guardian,
extended to the custody of the child and to the claim of the guardian that
the regime of protective upbringing should be terminated; this claim was
dismissed, not on the ground that it was inadmissible, but after it had been
considered on the merits and because it appeared to the Court that to uphold
it would, [p 66] at that time, have constituted a serious danger to the
mental health of the ward.
The judgment of the Supreme Administrative Court of February 21st, 1956,
merits particular attention. This judgment was given on an appeal against a
decision of the Provincial Government of Ostergotland which had held that
the measure of protective upbringing should be terminated: if matters had
ended there, there would have been no subject for dispute. There is a
subject for dispute only as a result of the judgment of February 21st, 1956,
which decided that the measure should be maintained. That judgment was
given, as the decision appealed against had been, in the light of and taking
into account the desire expressed by the guardian, Mme Postema, to entrust
the infant to M. and Mme Torn-quist, at Norrkoping. The Supreme
Administrative Court did not question Mme Postema's capacity to take
proceedings before it, and it thereby recognized her capacity as guardian
and her right to concern herself with the person of the infant; it did not
raise protective upbringing to the status of an institution, the effect of
which would be completely to absorb the Dutch guardianship; it confined
itself, for reasons outside the scope of the Court's examination, to
finding that the desire of the guardian and the satisfactory information
which she gave with regard to the household which enjoyed her confidence did
not constitute sufficient grounds for terminating the regime of protective
upbringing applied to the infant. Finally, under the regime thus maintained,
the person to whom the Child Welfare Board has entrusted the infant has not
the capacity and rights of a guardian. He receives her, watches over her,
provides for the care of her health: the infant is entrusted to his care as
she would have been entrusted to the care of the Tornquist family if the
guardian's wish had been carried out.
The protective upbringing applied to the infant, as it appears in these
decisions, i.e. according to the facts in the present case, cannot be
regarded as a rival guardianship to the guardianship established in the
Netherlands in accordance with the 1902 Convention.
The Swedish measure of protective upbringing, as instituted and maintained
in respect of Marie Elisabeth Boll, placed obstacles in the way of the full
exercise by the guardian of her right to custody. Before the Supreme
Administrative Court she relied, as has been recalled, upon her intention to
entrust the infant to a home of her choice: that intention clearly
corresponded to an exercise by the guardian of her right to custody. The
guardian was not, however, asking that her intention should simply be acted
upon; she relied upon it as a reason for terminating the regime of
protective upbringing. The Supreme Administrative Court, by its judgment of
February 21st, 1956, dismissed her claim. In dismissing it, the Court
limited itself no doubt to adjudicating upon the maintenance of protective
upbringing, but, at the same time, it placed an [p 67] obstacle in the way
of the full exercise of the right to custody belonging to the guardian. Does
this constitute a failure to observe the 1902 Convention, Article 6 of which
provides that "the administration of a guardianship extends to the
person... of the infant"?
In order to answer this question, it is not necessary, as has already been
said, for the Court to ascertain the real or alleged reasons which
determined or influenced the decisions complained of. It is called upon to
pronounce only on the compatibility of the measure with the obligations
binding upon Sweden under the 1902 Convention. It has before it a measure
instituted pursuant to a Swedish law which impedes the exercise by the
guardian of the right to custody conferred upon her by Dutch law in
accordance with the 1902 Convention. Are the imposition and maintenance of
such a measure incompatible with the 1902 Convention?
The Court is not confronted by a situation in which it would suffice for it
to say that a national law cannot override the obligations assumed by
treaty. It is asked to say whether the measure taken and impugned is or is
not compatible with the obligations binding upon Sweden by virtue of the
1902 Convention. To do that, it must determine what are the obligations
imposed by that Convention, how far they extend and, especially, it must
determine whether, by stipulating that the guardianship of an infant is
governed by the national law of the infant, the 1902 Convention intended to
prohibit the application to a foreign infant of a law such as the Swedish
Law on the protection of children.
The 1902 Convention, as indicated by its preamble, was designed to "lay down
common provisions to govern the guardianship of infants". It provides for
the application of the national law of the infant for the institution and
operation of guardianship by expressly extending in Article 6 the
administration of a guardianship to the person and to all the property of
the infant. It goes no farther than that, and indeed it has been pointed out
that it does not make complete provision for guardianship, which should
serve as a warning against any construction which would extend it beyond its
true scope. In providing that guardianship and, in particular, that the
guardian's right to custody should be governed by the national law of the
infant, the Convention was intended to determine what law should be applied
to settle these points. It was intended, in accordance with the general
purpose of the Conferences on Private International Law, that it should put
an end to the divergences of view as to whether preference ought to be given
in this connection to the national law of the infant, to that of his place
of residence, etc., but it was not intended to lay down, in the domain of
guardianship, and particularly of the right to custody, any immunity of an
infant or of a guardian with respect to the whole body of the local law. The
local law with regard to guardianship is in principle excluded, but not all
the other provisions of the local law. [p 68]
There may be some points of contact between matters governed by the national
law of the infant which is applicable to guardianship and matters falling
within the ambit of the local law. It does not follow that in such cases the
national law of the infant must always prevail over the application of the
local law and that, accordingly, the exercise of the powers of a guardian is
always beyond the reach of local laws dealing with subjects other than the
assignment of guardianship and the determination of the powers and duties of
a guardian. If, for instance, for the purposes of the administration of
guardianship in respect of the person or the property of an infant, a
guardian finds it necessary to travel to some foreign country, he will, so
far as his journey is concerned, be subject to the laws relating to the
entry and residence of foreigners. This is something outside the scope of
guardianship as regulated by the 1902 Convention.
If, in a country in which a foreign infant, to whom the 1902 Convention
applies, is living, laws relating to compulsory education and the sanitary
supervision of children, professional training or the participation of young
people in certain work, are applicable to foreigners, in circumstances
assumed to be in conformity with the requirements of international law and
of treaties governing these matters, a guardian's right to custody under the
national law of the infant cannot override the application of such laws to a
foreign infant. In adopting the national law of the infant as the proper law
to govern guardianship, including the guardian's right to custody, the 1902
Convention was not intended to decide upon anything other than guardianship,
the true purpose of which is to make provision for the protection of the
infant; it was not intended to regulate or to restrict the scope of laws
designed to meet preoccupations of a general character.
The same must be true of the Swedish Law on the protection of children and
young persons. Considered in its application to children of Swedish
nationality, the Law is not a law on guardianship, it does not relate to the
legal institution of guardianship. It is applicable whether the infant be
within the puissance paternelle of the parents or under guardianship.
Protective upbringing which constitutes an application of the Law is
superimposed, when that is necessary, on either, without bringing either to
an end but paralyzing their effects to the extent that they are in conflict
with the requirements of protective upbringing.
Is the 1902 Convention to be construed as meaning�tacitly, for the reason
that it provides that the guardianship of an infant shall be governed by his
national law�that it was intended to prohibit the application of any
legislative enactment on a different subject-matter the indirect effect of
which would be to restrict, though not to abolish, the guardian's right to
custody? So to interpret the Convention would be to go beyond its purpose.
That purpose was to put an end, in questions of guardianship, to diffi-[p
69]culties arising from the conflict of laws. That was its only purpose. It
was sought to achieve it by laying down to this end common rules which the
contracting States must respect. To understand the Convention as limiting
the right of contracting States to apply laws on a different topic would be
to go beyond that purpose.
The 1902 Convention determines the domain of application of the laws of each
contracting State in the matter of guardianship. It does this by requiring
each contracting State to apply the national law of the infant. If the 1902
Convention had intended to regulate the domain of application of laws such
as the Swedish Law on the protection of children and young persons, it would
follow that that Law should be applied to Swedish infants in a foreign
country. But no one has sought to attribute such an extraterritorial effect
to that Law. The 1902 Convention is therefore not concerned with the
determination of the domain of application of such a law.
A comparison between the purpose of the 1902 Convention and that of the
Swedish Law on the protection of children shows that the purpose of the
latter places it outside the field of application of the Convention.
The 1902 Convention did not seek to define what it meant by guardianship,
but there is no doubt that the legal systems, as between which it sought to
establish some harmony by prescribing what was the proper law to govern that
situation, understood and understand by guardianship an institution the
object of which is the protection of the infant: the protection and guidance
of his person, the safeguarding of his pecuniary interests and the
fulfilling of the functions rendered necessary by his legal incapacity.
Guardianship and protective upbringing have certain common purposes. The
special feature of the regime of protective upbringing is that it is put
into operation only in respect of children who, for reasons inherent in them
or for causes external to them, are in an abnormal situation�a situation
which, if allowed to continue, might give rise to danger going beyond the
person of the child. Protective upbringing contributes to the protection of
the child, but at the same time, and above all, it is designed to protect
society against dangers resulting from improper upbringing, inadequate
hygiene, or moral corruption of young people. The 1902 Convention recognizes
the fact that guardianship, in order to achieve its aim of individual
pro-tection, needs to be governed by the national law of the infant; to
achieve the aim of the social guarantee which it is the purpose of the
Swedish Law on the protection of children and young persons to provide, it
is necessary that it should apply to all young people living in Sweden.
Protective upbringing is not, as is guardianship, applied for a pre-ordained
period during which it is maintained. The public service of the protection
of children is much more flexible, just because the measures taken depend
upon the circumstances, and [p 70] can be modified in accordance with
alterations in those circumstances. Its functions correspond to
preoccupations of a moral and social order. The Swedish Law being designed
to provide a social guarantee, it was presented, on behalf of the Government
of Sweden, as a law of ordre public which, as such, is binding upon all
those upon Swedish territory. The consequences to be drawn from such a
characterization were argued at length before the Court. It was contended
that a proper interpretation of the 1902 Convention must lead to recognition
that this Convention, bringing about the unification as between the
contracting States of certain rules for the settlement of conflicts of law,
must be understood as containing an implied reservation authorizing, on the
ground of ordre public, the overruling of the application of the foreign law
recognized as normally the proper law to govern the legal relationship in
question. It has been argued that such an exception is recognized in the
systems of private international law of those countries which joined in the
partial codification of this branch of the law. The Court does not consider
it necessary to pronounce upon this contention. It seeks to ascertain in a
more direct manner whether, having regard to its purpose, the 1902
Convention lays down any rules which the Swedish authorities have
disregarded.
The 1902 Convention had to meet a problem of the conflict of private law
rules. It presupposes the hesitation which was felt in the choice of the law
applicable to a given legal relationship: the national law of an individual,
the law of his place of residence, the lex fori, etc. It gave the preference
to the national law of the infant and thereby prescribed to the courts of
each contracting State that they should apply a foreign law when the infant
involved was a foreigner. It is perfectly conceivable that the courts of a
State should in certain cases apply a foreign law.
Very different is the sense of the question if it be asked what is the
domain of the applicability of the Swedish Law or of the Dutch law on the
protection of children. The measures provided for or prescribed by Swedish
law are applied, at least in the first stage as was done in the present
case, by an administrative organ. Such an organ can act only in accordance
with its own law: it is incon-ceivable that the Swedish Child Welfare Board
should apply Dutch law to a Dutch infant living in Sweden and equally
inconceivable that the competent Dutch organ should apply Dutch law to such
an infant living abroad. What a Swedish or Dutch Court can do in matters of
guardianship, pursuant to the 1902 Convention, namely apply a foreign
law�Dutch law or Swedish law as the case may be�the authorities of those
countries cannot do in the matter of protective upbringing. To extend the
1902 Convention to such a situation would lead to an impossibility. It is
not permissible so to construe the Convention as to bring about such a
result. [p 71]
The 1902 Convention was designed to put an end to the competing claims of
several laws to govern a single legal relationship. There are no such
competing claims in the case of laws for the protection of children and
young persons. The claim of each of these laws is that it should be applied
in the country in which it was enacted: such a law has not and, as has been
seen, cannot have any extraterritorial aspiration, for that would exceed its
social purpose as well as the means of which it disposes. The problem which
was at the basis of the 1902 Convention does not exist in respect of these
laws, and the only danger which could threaten them would lie in the
negative solution which would be reached if, as a result of an extensive
construction which has not heretofore been considered justified, the
application of Swedish law was refused to Dutch children living in Sweden;
since Dutch law on the same subject could not be applied to them, the
protection of children and young persons, desired both by Swedish law and by
Dutch law, would be frustrated. The 1902 Convention never intended that a
negative solution should be reached in the domain with which it is
concerned: this confirms that what is understood by the protection of
children and young persons does not fall within the domain of the
Convention.
It is scarcely necessary to add that to arrive at a solution which would put
an obstacle in the way of the application of the Swedish Law on the
protection of children and young persons to a foreign infant living in
Sweden would be to misconceive the social purpose of that law, a purpose of
which the importance was felt in many countries particularly after the
signature of the 1902 Convention. The social problem of delinquent or even
of merely misdirected young people, and of children whose health, mental
state or moral development is threatened, in short, of those ill-adapted to
social life, has often arisen; laws such as the Swedish Law now in question
were enacted in several countries to meet the problem. The Court could not
readily subscribe to any construction which would make the 1902 Convention
an obstacle on this point to social progress.
It thus seems to the Court that, in spite of their points of contact and in
spite, indeed, of the encroachments revealed in practice, the 1902
Convention on the guardianship of infants does not include within its scope
the matter of the protection of children and of young persons as understood
by the Swedish Law of June 6th, 1924. The 1902 Convention cannot therefore
have given rise to obligations binding upon the signatory States in a field
outside the matter with which it was concerned, and accordingly the Court
does not in the present case find any failure to observe that Convention on
the part of Sweden.
This finding makes it unnecessary to examine a further submission put
forward by the Government of the Netherlands after the main submission which
is not upheld by the Court. Furthermore, in view of the reply given to the
main submission put forward by [p 72] the Government of Sweden, it is
unnecessary to examine its alternative submission.
For these reasons,
The Court,
By twelve votes to four, rejects the claim of the Government of the
Netherlands.
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-eighth day of November one thousand
nine hundred and fifty-eight, in three copies, one of which will be placed
in the archives of the Court and the others will be transmitted to the
Government of the Kingdom of the Netherlands and to the Government of the
Kingdom of Sweden, respectively.
(Signed) Helge Klaestad,
President.
(Signed) S. Aquarone,
Acting Registrar.
Judge Kojevnikov states that he is unable to concur either in the reasoning
or in the operative clause of the Judgment because, in his opinion, on the
basis of the principle pacta sunt servanda, having regard to the fact that
the rights and obligations of the Parties under the 1902 Convention
governing the guardianship of infants are abundantly clear, having regard to
the character of the case and the available facts, as well as the legitimate
interests of the infant concerned�who is of Dutch nationality�the Court
ought to have held that the measures taken by the Swedish administrative
authorities in respect of the said infant, which impede the exercise of the
right of guardianship based on the treaty, are not in conformity with the
obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the
aforementioned 1902 Convention, in particular Articles 1 and 6 of the
Convention.
Judge Spiropoulos states that, although he shares the opinion of the Court
that Sweden cannot be held to have failed to respect her obligations under
the 1902 Covention in this case, he considers that the rejection of the
claim of the Government of the Netherlands ought rather to be based upon
the character of ordre public [p 73] of the Swedish Law on the protection of
children and young persons. In his opinion, this character enables the Law
to override the 1902 Convention, since the 1902 Convention must be
understood as containing an implied reservation authorizing, on the ground
of ordre public, the overruling of the application of the foreign law
recognized as the proper law, in accordance with the Convention, to govern
the legal relationship in question.
Judges Badawi, Sir Hersch Lauterpacht, Moreno Quintana, Wellington Koo and
Sir Percy SPENDER, availing themselves of the right conferred upon them by
Article 57 of the Statute, append to the Judgment of the Court statements of
their separate opinions.
Vice-President Zafrulla Khan states that he agrees generally with Judge
Wellington Koo.
Judges Winiarski, Cordova and M. Offerhaus, Judge ad hoc, availing
themselves of the right conferred upon them by Article 57 of the Statute,
append to the Judgment of the Court statements of their dissenting opinions.
(Initialled) H. K.
(Initialled) S. A.
[p 74]
SEPARATE OPINION OF JUDGE BADAWI
[Translation]
I am in agreement both with the operative clause of and the grounds for the
Court's Judgment. As reasons for its decision, however, the Court did not
think it necessary to pronounce upon the interpretation of the law on
protective upbringing as a law of ordre public aiming to provide a social
guarantee, nor of the Convention of 1902 as containing an implied
reservation authorizing, on the ground of ordre public, the overruling of
the application of the foreign law recognized as the proper law to govern
the legal relationship in question. The Court confined itself to giving a
careful and closely reasoned analysis of the differences between the purpose
of the Convention and the purpose of the law. In view of these differences,
the Court considered that the Convention could not overrule the law, quite
apart from the fact that unless the law prevailed, a negative solution would
be arrived at, according to which the infant would lose in Sweden, where
she lives, both the benefit of the law on protective upbringing and of the
corresponding Dutch system of placing under supervision, this system only
being applicable in the Netherlands by the Dutch national organs.
For my part, I take the view that this justification alone is not decisive,
since, apart from the differences between the Convention and the law, there
is the fact that the application of the latter affects the effects of the
former. There is thus opposition between the two, and it is necessary to
make one prevail over the other.
Now, the law is a national instrument, while the Convention is an
international instrument. In favour of the latter there is a presumption of
primacy and it has been established by many judicial decisions that a State
cannot evade the obligations imposed by an international convention by
invoking its own law, or indeed even its own constitution.
It is not enough, therefore, that the subject-matter of the law should be
different from the subject-matter of the Convention. One must further take
the view, either that this particular law is superior to the Convention, or
that the Convention should be interpreted as embodying a tacit reservation
which authorizes in certain cases the preference being given to the lex
fori�in other words, that the law constituting the lex fori is a law of
ordre public.
The first alternative is clearly to be excluded. The second one remains.
Now, despite its apparent incongruity in the case of international
conventions, the concept of laws of ordre public is a common one in private
international law.
It is universally recognized in national systems of conflicts of laws as
inseparable from these systems, notwithstanding that this [p 75] general
formula of ordre public is considered a vague, indefinite and relative
concept and one that varies according to place and time.
Is the situation the same in international conventions relating to the
system of the conflict of laws? International conventions on this subject
are, in fact, simply designed to achieve the unification of the system,
without creating specific obligations. They merely constitute an alignment
of States upon a uniform solution, without changing the nature of this
solution as it is generally adopted in national legal systems.
Some doubt however appears to have been cast upon the invariability of this
conclusion in the case of international conventions. Some take the view
that, in the Convention of 1904 on succession, signed by the
representatives of a large number of States, Article 6 regarding ordre
public, which was redrafted so many times, made the Convention abortive, for
it was never ratified, and that in 1913 France denounced the three
Conventions of 1902, also for a reason of ordre public.
However that may be, it is somewhat significant to note that recent
conventions of private international law expressly provided for the
exception of ordre public.
During the drawing up of the Convention of 1902 on guardianship, there
were, indeed, lengthy discussions on the adoption of a general formula of
ordre public. The trend of opinion opposed to its inclusion in the
Convention prevailed by invoking its vagueness and generality, as well as
the fear that national tribunals might reduce the Convention to nothing in
giving the formula a broad interpretation. According to this view, the
Convention adopted a system of special treatment by providing for the only
cases which deserved to be regarded as exceptions to the general rule laid
down by the first article of the Convention.
Articles 3, 6 and 7 of the Convention have been cited as cases in which, on
the grounds of ordre public, the national law is excluded. According to this
interpretation, a similar exception would not be justified in any other
case.
But, leaving aside paragraph 2 of Article 6, the provisions of Article 3 and
7 are, in fact, concerned with details of application or with hypotheses in
which the application of the national law cannot be contemplated, not on
grounds of ordre public, but on account of factors inherent in those very
hypotheses. Under Article 3, it is as a result of the failure of the
national law that the local law will be applied, while Article 7 is
concerned only with provisional measures taken pending the institution of
guardianship under the national law or measures taken in cases of urgency.
Apart from this argument drawn from the Convention and on the basis of the
discussions at the Hague Conferences, must one conclude that in the absence
of an exception of ordre public expressly provided for in the Convention, no
such exception should be ad-[p 76]mitted? But no special provisions for
individual cases could be sufficient or adequate to meet the needs of every
legal situation, since the cases of ordre public cannot be fixed and listed
in advance. The human contingencies which may give rise to a divergence
between a rule determined by the system adopted for conflict of laws and
another rule of the lex fori are numerous and often unforeseeable, quite
apart from the fact that new laws may give rise to cases in which similar
divergencies may be revealed.
The absence of a general formula of ordre public cannot, therefore, be
interpreted as a negation of this reservation. In fact, this tacit
reservation forms part of the technical structure of private inter-national
law which, by settling a conflict between two systems of law by means of the
all-inclusive acceptance of one of them, cannot obviate another conflict
between a particular rule of the system chosen and a rule of the lex fori.
And it is precisely the exception of ordre public, implied in any system of
conflict of laws, that constitutes the criterion for the settlement of
conflict, which can be foreseen but not determined in advance.
But, if the omission to provide for the exception of ordre public in a
convention does not mean that the convention denies its existence, such an
omission could, in the mind of its supporters, have served as a means of
minimizing the violations of the convention which would result from an
abusive use of the exception. Perhaps it was thought that, without an
arbitration voluntarily agreed to by the contracting parties to the Hague
Conventions, in case of the abusive use of the exception�a cumbersome,
costly, and not very appropriate method�the parties would have been unable
to obtain justice.
Notwithstanding this probable mental reservation, the fact that the
Convention is silent with regard to the exception cannot properly be
construed as a denial of its existence. The view that it would, in one form
or another, be admissible has always been held, because the exception is
inseparable from the system of conflict of laws.
***
In fact, the exclusion of the exception of ordre public in the application
of an international convention on the conflict of laws is only conceivable
on the assumption that the contracting States impliedly intended to accept
the obligation not to reserve for their own sovereign action any right to
apply the rules of their own legislation which might directly or indirectly
run counter to the effects of the application of the convention.
Such an interpretation is however neither admissible nor in conformity with
the facts. It is not admissible because it would reject the implication of
the exception of ordre public to substitute for it a more serious
implication. [p 77]
It is not in conformity with the facts because even the extremist opponents
of the exception cannot deny that certain limitations to the application of
the Convention do in fact exist, in particular in penal matters,
notwithstanding that these limitations have not been expressly provided for
and that they can only be the result of an interpretation by implication.
Without attempting a definition of ordre public, which the Conferences were
not able to establish, it is not difficult to admit that the limitations
which may be justified on grounds similar to or as valid as the limitation
mentioned above should benefit by the same treatment. They would involve a
comparison between the obligation resulting from the Convention and the
local law. If the courts of a contracting State, under the possible ultimate
supervision of an international jurisdiction, hold that the law, in view of
its importance and its serious nature, should not be applied only to
nationals of the country, either as a right or a privilege, or as an
obligation or duty, but to all the inhabitants of the country as being a law
of ordre public, they cannot be held to be contravening the intentions of
the contracting States in making the law prevail over the Convention. It is,
in fact, a question to be decided in each case, having regard to the
convention and the law involved.
***
With regard to the present case, it is sufficient to recall that the
Netherlands, notwithstanding the omission of any allusion in the Convention
to the exception, recognize that the Convention cannot be invoked with
regard to the custody of a child under guardianship against the carrying out
of a penalty or of a measure of reformation pronounced against the child for
an offence which it has committed, in the same way as they would recognize
that the protective upbringing exercised in cases (b), (c) and (d) referred
to in Article 22 of the Swedish Law of June 6th, 1924, would override the
application of the Convention, but not case (a)�which is that of Elisabeth
Boll�because that case only relates to the private interests of the child
and thus constitutes a case of guardianship and hence a rival guardianship
to that provided for in the first article of the Convention.
But it is arbitrary, where the law has put the different grounds on a
footing of equality, to consider that one of them is connected with the
private interests of the child, while the others have in view the interests
of society�especially bearing in mind the evolution that has taken place in
ideas concerning children and young people.
How, moreover, on what basis, is the respective seriousness of the grounds
laid down in Article 22 to be determined, when the law establishes and puts
at the disposal of the Board measures which are not determined by the
differences in those grounds�a certain measure being applied for a certain
ground�but only by the appropriateness of the measure in regard to the
specific case? [p 78]
A case (a) may be more serious than a case (c), and may call for a graver
measure; and the contrary can also be true.
***
In order to contest the exception of ordre public, the vagueness and
generality of the concept have often been invoked, as also the fear that it
may be abusively or arbitrarily applied; but, apart from the fact that that
is a hypothetical, and exaggerated danger, the objection is not valid to
exclude a rule of law of which it postulates the truth in principle. At the
most, the only value of the objection would be to call for greater
circumspection in its application.
In the present case, the issue does not in reality bear on the principle of
the exception of ordre -public, nor on the fact that it constitutes an
implied reservation to the first Article of the Con-vention of 1902, nor on
the general scope of the law on protective upbringing, but on the
application of one of its provisions to the case submitted to the Court, by
detaching the first paragraph of Article 22 of the law of June 6th, 1924,
from the system as a whole and by contesting its character of ordre public.
The presence of the element of a substantive link considered as a condition
of the exception of ordre public has also been disputed, but the
uninterrupted residence of the infant in Sweden leaves no doubt, in the
present case, of the existence of such an element.
***
From the foregoing considerations it may be concluded that the law on
protective upbringing is a law of ordre public and that, as such, it
overrides the application of the Convention of 1902.
This reason should therefore be added to the reasons adopted by the Court,
of which it is a necessary complement.
The rejection of the Submissions of the Netherlands arrived at on the basis
of the arguments of the Parties themselves would then be even more
convincing.
(Signed) A. Badawi.
[p 79]
SEPARATE OPINION OF JUDGE SIR HERSCH LAUTERPACHT
While, for reasons which I deem it incumbent upon me to state, I am unable
to accept some of the contentions advanced by the defendant Government and
upheld by the Court, I arrive on other grounds at the same results as does
the Judgment. I do so by reference to considerations of public policy, of
ordre public� a question which occupied the main part of the written and
oral pleadings, which figures exclusively in the formulation of the legal
issue in the final Conclusions of both Parties, and which I feel therefore
bound to examine in the present Opinion.
***
The facts underlying the controversy between the Parties are stated in
detail in the Judgment of the Court. For the purpose of this Opinion it is
sufficient to recapitulate briefly the crucial aspect of the dispute: The
Hague Convention of 12th June, 1902, on Guardianship of Infants, to which
both Sweden and the Netherlands are Parties, provides in Article 1 that the
guardianship of an infant shall be governed by the national law of the
infant. It is clear from the various articles of the Convention, and it is
not disputed by the Parties, that such guardianship extends normally to the
custody of the person of the minor. In accordance with the provisions of
the Convention, a Dutch guardian was appointed in 1954 by a Dutch Court over
Elisabeth Boll who, although born in Sweden and permanently resident there
since her birth, is of Dutch nationality. In the same year, various Swedish
authorities, in a series of decisions and in circumstances which appear from
the Judgment, applied to Elisabeth Boll the Swedish Law of 1924 concerning
the Protection of Children and Young Persons (Child Welfare Act)�which will
be referred to in this Opinion as the Law on Protective Upbringing. By one
of these decisions the custody of the person of Elisabeth Boll was taken
over in 1954 by the Child Welfare Board at Norrkoping, the place of
residence of Elisabeth Boll. The Board, in turn, entrusted the custody of
Elisabeth to her maternal grandfather�such custody to be exercised on behalf
of the Board. That measure was finally confirmed by the Supreme
Administrative Court of Sweden. It must be noted that in a series of
decisions the Swedish courts and authorities otherwise recognized the
guardian appointed by the Dutch court.
The principal justification which the Swedish Government adduced for the
action taken by the Swedish authorities was that [p 80] the Law on
Protective Upbringing is a measure of ordre public and that the reliance on
it, far from being in violation of the Convention, is implied in it. In the
course of the written and oral pleadings subsidiary arguments were relied
upon by the Swedish Government. One of them was the contention that the
Convention of 1902, being a Convention on Guardianship, does not cover the
Swedish Law on Protective Upbringing said to pursue a different object and
to lie in a different field. It is that line of argument which has acquired
prominence in the present case and which must be examined in the first
instance.
That manner of approach, as expressed in or as underlying the Swedish
argument, may be summarized as follows: There is no incompatibility between
the Guardianship Convention and the Law on Protective Upbringing. The
Convention, which is concerned with guardianship, does not cover protective
upbringing. The latter is outside the Convention. This is so although the
effect of the Law on Protective Upbringing is such as to render impossible,
for the time being, the exercise by the Dutch guardian of the right of
custody of the person of Elisabeth Boll. The object and purpose of the Law
on Protective Upbringing is wholly different from that of the Guardianship
Convention. The Court is not concerned with the incidental effects of the
Law on Protective Upbringing but with its nature and purpose. Guardianship
and protective upbringing are wholly different institutions. The former is
concerned with the interests of the minor, the latter with the interests of
society. Guardianship is in the sphere of private law. Protective
upbringing is in the sphere of public law. The Convention, which is one on
private international law, can be violated only by legislation in the sphere
of private international law. From the point of view of their nature and
purposes, the Convention and the Law on Protective Upbringing operate on
wholly different planes and there is, therefore, no question of the Law and
the measures taken thereunder being incompatible with the Convention.
The reasoning underlying these contentions raises important questions,
transcending the issue immediately before the Court, of interpretation and
observance of treaties. If a State enacts and applies legislation which, in
effect, renders the treaty wholly or partly inoperative, can such
legislation be deemed not to constitute a violation of the treaty for the
reason that the legislation in question covers a subject-matter different
from that covered by the treaty, that it is concerned with a different
institution, and that it pursues a different purpose? I have considerable
difficulty in answering that question in the affirmative. The difficulty is
increased by the fact that the conflict between the treaty and the
legislation in question may be concealed, or made to be concealed, by what
is no more than a doctrinal or legislative difference of classification. An
identical provision which in the law. of one country forms part of a law for
the protection of children may, in [p 81] another State, be included within
the provisions relating to guardianship. That, as will be shown, is no mere
theoretical possibility. It is in fact a conspicuous feature of the present
case.
What is the meaning of the expression: "The Convention of 1902 does not
cover a system such as that set up in the Swedish Law on Protective
Upbringing"? It is admitted that guardianship under the Convention covers
the right to decide on the residence and education of the minor�a right
claimed and exercised by a Swedish authority and, on its behalf, by the
Swedish maternal grandfather acting in pursuance of the Law on Protective
Upbringing. If that is so, then the Convention does cover, in one of its
essential aspects, the same powers and functions which are now exercised by
Swedish authorities in pursuance of the Law on Protective Upbringing. The
substance is the same although the purpose of the Convention and of the Law
may be different. It may be said that what matters is not the substance of
these functions but their object. It is not easy to follow that distinction.
When a State concludes a treaty it is entitled to expect that that treaty
will not be mutilated or destroyed by legislative or other measures which
pursue a different object but which, in effect, render impossible the
operation of the treaty or of part thereof.
The treaty covers every law and every provision of a law which impairs,
which interferes with, the operation of the treaty. It has been said that
the Law in question may have an adverse effect upon subject-matter of the
treaty without being covered by the treaty. However, what the Court must be
concerned with is exactly the effect of the Law inasmuch as it impairs the
operation of the treaty, and not the notional identity or otherwise of the
objects pursued by the Law and the treaty. The treaty prohibits interference
with its operation unless there is a justification for it, express or
implied, in the treaty; that justification cannot be found in the mere fact
that the Law pursues an object different from the object pursued by the
treaty. It can be found only in the fact that that particular object is
expressly permitted by the treaty or implicitly authorized by it by virtue
of some principle of public or private international law�a principle such as
stems from public policy or from a cognate, although more limited,
principle, which is often no more than another formulation of public policy,
namely, that certain categories of laws, such as criminal laws, police laws,
fiscal laws, administrative laws, and so on, are binding upon all the
inhabitants of the territory notwithstanding any general applicability of
foreign law.
The following example will illustrate the problem and the consequences
involved: States often conclude treaties of commerce and establishment
providing for a measure of protection from restrictions with regard to
importation or export of goods, admission and residence of aliens, their
right to inherit property, functions of consuls, and the like. What is the
position of a State which has concluded a treaty of that type and then finds
that the other Party [p 82] whittles down, or renders inoperative, one after
another, the provisions of that treaty by enacting laws "having a different
subject-matter" such as reducing unemployment, social welfare, promotion of
native craft and industry, protection of public morals in relation to
admission of aliens, racial segregation, reform of civil procedure involving
the abolition of customary rights of consular representation, reform of the
civil code involving a change of inheritance laws in a way affecting the
right of inheritance by aliens, a general law codifying the law relating to
the jurisdiction of courts and involving the abolition of immunities,
granted by the treaty, of public vessels engaged in commerce, or any other
laws "pursuing different objects"? It makes little or no difference to the
other Party that the treaty has become a dead letter as the result of laws
which have so obviously affected its substance, but which pursue a different
object. As stated, some of these laws may be justified as being within the
domain of public policy or for some cognate reason. However, the argument
here summarized does not proceed on these lines. It is based on the
allegation of a difference between the treaty and the Law which impedes its
operation.
Another example, directly relating to the Convention of 1902, will
illustrate the problem from a different point of view. Article 2 of the
Convention lays down that in some cases the diplomatic or consular agents
authorized by the law of the State of which the infant is a national may
make provision for guardianship in accordance with the law of that State.
What is the position if a Contracting Party enacts a general law�a law of
public character on a quite different plane�relating to the immunities and
functions of foreign diplomatic and consular representatives providing that
in the future foreign diplomatic and consular representatives shall not
perform any act affecting private rights in the territory of that State? Can
that State plead that, as the Convention and the Law pursue a quite
different purpose, it does not matter that the effect of the Law is to
frustrate one of the provisions of the Convention?
The conspicuous fact in the present case is that the Dutch guardian
acceptable to the father of the infant and appointed under Dutch law in
accordance with the Convention was replaced, in respect of the exercise of
the right of custody, by the Swedish maternal grandfather of Elisabeth Boll
acting on behalf of the Children's Bureau. The Dutch authorities and the
Dutch guardian may not unnaturally hold the view that the custody exercised
by the Swedish grandfather is, in fact and in the circumstances of the case
which reveal some dissension between the Dutch and the Swedish branches of
the family, to a large extent a rival guardianship. They may find it
difficult to appreciate the suggestion that there is no conflict between the
Convention and the measures taken [p 83] seeing that they lie on a different
plane and pursue different objects. The situation is not affected by the
continuing right of the Dutch guardian to administer the property of the
child or to institute proceedings for the restoration of her functions of
custody. So long as the exercise of the right of custody is vested in the
hands of the Swedish authority and the Swedish maternal grandfather of
Elisabeth Boll acting on its behalf, there is a nullification of the
essential attributes of the guardianship as instituted by the Convention.
There may be�and as will be suggested later on, there is�a full
justification for that measure in considerations of a different character.
That justification cannot be found in the allegation, which is
controversial, that the Dutch guardianship and the Swedish protective
upbringing are wholly different institutions.
A State is not entitled to cut down its treaty obligations in relation to
one institution by enacting in the sphere of another institution provisions
whose effect is such as to frustrate the operation of a crucial aspect of
the treaty. There is a disadvantage in accepting a principle of
interpretation, coined for the purposes of a particular case, which, if
acted upon generally, is bound to have serious repercussions on the
authority of treaties. As stated, the Convention and the particular
provision of the Law on Protective Upbringing cover, in relation to the
present dispute, the same ground and the same subject-matter. It has been
said that there is a technical difference, inasmuch as they He on different
planes, between the Convention and the Law on Protective Upbringing.
Assuming that there is a technical difference, it may still be considered
undesirable that a dispute between two Governments shall be decided by
reference to a controversial technicality in a case relating to significant
issues of substance�a technicality which, if acted upon generally, would
introduce confusion, or worse, in the law of the operation of treaties. Once
we begin to base the interpretation of treaties on conceptual distinctions
between actually conflicting legal rules lying on different planes and for
that reason not being, somehow, inconsistent, it may be difficult to set a
limit to the effects of these operations in the sphere of logic and
classification.
The view has been put forward that there can be no conflict between a
Convention on Guardianship and the Law on Protective Upbringing for the
reason that the Convention of 1902 is a convention of private international
law and that guardianship with which it is exclusively concerned is an
institution of private law, in particular of family law, while the Law on
Protective Upbringing and the various measures authorized therein are in the
sphere of public law seeing that they are concerned with safeguarding the
interests of society. Even if these reasons were otherwise acceptable, an
essentially doctrinal classification and distinction provides a doubtful
basis for judging the question of the proper observance of [p 84] treaties.
However, there is in the present case a particular difficulty in
acknowledging the force of that distinction.
An examination of the main systems of municipal law in the matter of
guardianship does not corroborate the view that it is a mere family
institution of a purely private law nature. The principal justification for
that view is that, by way of traditional classification, guardianship finds
a place in codes of private law and that it creates numerous rights and
duties in the sphere of private law. However, at the same time guardianship
can rightly be described as an institution in which the guardian acts as an
organ of the State, as it were, and therefore partakes of the nature of an
institution of public law. He acts under the active supervision of the State
which may step in at any time�in the interest both of the child and
society�and supplant the guardian, wholly or in part. There are very few
countries the law of which is based exclusively upon a private law and
family conception of guardianship. The law of the majority of States,
including Holland and Sweden, on this matter is characterized by an active
intervention of the State as an organ of control and supervision at every
stage. In some countries, such as Germany, the protection of minors is
entrusted mainly to the State which acts through a special tribunal�the
Guardianship Court�and it is only by way of exception that these functions
are delegated to the family council. It is of interest to note that prior to
the Hague Conventions which examined the various drafts of the Convention on
Guardianship, the difference between the two systems�"tutelle de famille"
(family guardianship) and "tutelle d'autorité" (authority guardianship)�was
clearly recognized. That distinction was, for instance, elaborated in 1902
by M. Lehr, Secretary of the Institute of International Law, which had a
substantial share in the preparation of the first drafts of the Convention
(Lehr, "De la tutelle des mineurs d'après les principales législations de
l'Europe", Revue de droit international et de législation comparée, 2nd
series, Vol. 4 (1902), pp. 315 et seq.). He classified both the Dutch and
Swedish systems of guardianship as belonging to the group of "tutelle
d'autorité" (pp. 320, 326, 329).
In view of this, it does not seem to me possible to accept the argument
based on the notion of a purely private law and family character of
guardianship. How artificial are the distinctions between the supposed
private law character of guardianship and the assumed public law7 character
of systems of protective supervision or upbringing of children, apart from
the normal operation of guardianship, may be gauged from the fact that the
matter is entirely a question of legislative technique and drafting. That
may be seen, for instance, from the provisions of the Dutch Civil Code
relating to guardianship and contained in Part XV of Book I of the Code.
Section A i of Part XV covers Paternal Power; Section B 2 covers Paternal
Guardianship; while Section B 3, which according to Section B 9 is
applicable to guardianship, embodies largely the same [p 85] provisions as
are embodied in that part of the Swedish Law on Protective Upbringing which
was applied in the case of Elisabeth Boll. That Section, in language almost
identical with that of the above-mentioned Swedish Law, provides, in
paragraph 365, for the taking of certain steps "if a child grows up in any
such a way as to be threatened with moral or physical harm". These steps may
be taken at the instance of Guardianship Councils, for which provision is
made in the same part of the Law and which, under the authority of courts of
law, fulfil functions similar to those of the Children's Bureau under the
Swedish Law of 1924 (Sections 461 et sea.). The same Section A 3 makes
provisions for children in that situation being placed by the Judge of the
Children's Court in an observation centre for mental or physical
examination, or, if the child needs special observation, in an institution
selected for that purpose (paragraph 372 a and b). The German Civil Code, in
the Section on Guardianship, provides in a single Article�Article 1838 �that
the Guardianship Court can order the placing of the minor with an
appropriate family or in an educational or reformatory institution�a kind of
provision which is found in the Swedish Law of 1924. It is a matter of
legislative technique and drafting whether the provisions for the protection
of children in relation to whom normal guardianship has proved insufficient
are, as in Holland, made part of the legislation relating to guardianship or
whether, as in the case of Sweden, they are embodied in a separate
enactment. In both instances they are intended to protect both the child
and the society.
For it is clear that the distinction between the protection of the child and
the protection of society is artificial. Both the laws relating to
guardianship and those relating to protective upbringing are laws intended
primarily for the protection of children and their interests. At the same
time, the protection of children�through guardianship or protective
upbringing�is pre-eminently in the interests of society. They are part of
it�the most vulnerable and most in need of protection. All social laws are,
in the last resort, laws for the protection of individuals; all laws for the
protection of individuals are, in a true sense, social laws. There is an
element of unreality in making these two aspects of the purpose of the State
the starting-point for drawing legal consequences of practical import. It is
wholly unreal to insist that the measures taken under the Law on Protective
Upbringing for the safety, health and happiness of Elisabeth Boll were not
measures taken primarily in the interest of that child�and therefore not
measures of guardianship of her person�but primarily in the interest of
society at large and therefore falling within a quite different category. It
is in the light of these considerations that it is necessary to judge the
view that as the Guardianship Convention of 1902 is concerned only with a
private law institution of family relationship devoid of any public element,
there can be no conflict between it and an enactment [p 86] of an
exclusively public law character such as the Swedish Law on Protective
Upbringing. Even if every link of that proposition could be substantiated by
reference to national law as operating in most countries�and that does not
appear to be the case�there would still remain the difficulty of assessing
the content of the statement that there can be no conflict between a treaty
regulating a sphere of private law and national enactment in the realm of
public law.
Undoubtedly, the Convention of 1902 was intended to regulate conflicts of
law in the sphere of guardianship. But there is no persuasive reason for
accepting the suggestion that the relevant provisions of the Swedish Law on
Protective Upbringing, under which the custody of Elisabeth Boll was
entrusted to the care of her maternal grandfather in his home under the
authority of the Children's Board, has nothing to do with guardianship,
seeing that they are of a public law nature. Similarly, it is difficult to
accept the suggestion that guardianship, instituted in the private interest
of the child, is devoid of a substantial public element of social purpose.
The rights of the parties, especially in an international dispute, ought not
to be determined by reference to the controversial mysteries of the
distinction between private and public law. The fact that the purpose of the
Convention of 1902 is to establish rules for avoiding conflicts of laws in
the sphere of guardianship does not mean that that sphere is confined to
laws described as guardianship; it covers all laws, however described or
classified, which fulfil an essential function of guardianship. It is part
of the firmly established jurisprudence of this Court that with regard to
national laws bearing upon treaty obligations what matters is not the letter
of the law but its actual effect.
However, it is not necessary to labour this point. The preceding
considerations are, in my view, sufficient to show the decisive difficulties
inherent in the proposition that a State can properly claim to depart from
the obligations of a treaty by enacting laws which, although they impair the
operation of the treaty, are said not to conflict with it on the ground that
they he on different planes or are concerned with a different
subject-matter.
Clearly, the guardian does not enjoy immunity from the operation of local
law, such as criminal law, which may deprive him of the custody of the minor
placed in a penal or reformatory institution. The guardian is subject to
laws relating to education, health, revenue and so on. However, although, in
the absence of a more substantial justification than differences of
classification, the guardian enjoys no immunity from local law, he is
entitled, in principle, to immunity from being deprived permanently or
semi-permanently of [p 87] some of the main attributes of guardianship such
as custody of the child�especially if such custody is made the subject of
what, in the circumstances of the case, is apt to give the impression of a
rival guardianship. There may be a justification for such deprivation but
that justification cannot properly be based upon factors which are
essentially of a technical character. In my view, the more accurate approach
to the question is not that the system of protective upbringing is outside
the Convention or that it pursues a different object but, rather, that it is
not inconsistent with the Convention. In other words, that it is both
covered and permitted by the Convention by virtue of public policy�ordre
public�or some similar reason based on the right, conceded by international
law, of a State to apply a particular law impairing or preventing the
operation of the Convention.
In fact, it is in that sense that I understand�and concur in� that part of
the Court's Judgment which stresses the beneficent social objects, of an
urgent character, of the Swedish Law in question. That is a consideration
closely related to those underlying the notion of ordre public. It is this
aspect of the question which I deem it incumbent upon me to examine in some
detail in the present Opinion.
***
Prior to that, reference must be made to an ancillary submission of Swedish
Counsel bearing upon the possible effects of a ruling that the Swedish Law
on Protective Upbringing does not apply to children of Dutch nationality. It
was pointed out on behalf of the Swedish Government that any such
interpretation of the Convention would result in a dangerous legal vacuum.
It was urged that as Dutch administrative authorities are responsible for
giving effect to the provisions of the Dutch law in the sphere of the
protection of children and that as, according to international law, no
State can perform administrative acts in the territory of another State, the
result would be that Dutch children in Sweden who are in need of care
outside guardianship would remain altogether without protection.
It must be conceded that, if only possible having regard to the intention of
the Parties, a treaty ought to be interpreted so as to permit rather than to
impede desirable measures of social protection. However, it appears to me
that the spectre of a legal vacuum, as pictured on behalf of the Swedish
Government in this connection, is illusory. Normally, the Dutch guardian
would, in such cases, take the necessary steps to remove the child to
Holland. In cases when that is not possible, the Dutch guardian would place
the child in an appropriate home (as was, in fact, contemplated for a time
by the Dutch guardian of Elisabeth Boll) or take other steps required by the
physical or mental condition of the child [p 88] such as placing it in an
institution for observation or treatment. In exceptional cases in which, for
one reason or another, the guardian fails to act or to act satisfactorily,
necessary measures would be decreed by the Dutch authorities. However,
according to Dutch law these are not administrative authorities. They are
judicial authorities applying Dutch law which Sweden, by virtue of the
Convention, is bound to recognize and the respect for which she is bound to
ensure in good faith without requiring any additional treaty arrangements
for that purpose. Thus the above-mentioned Article 365 of the Dutch Civil
Code provides that if the child grows up in such a way as to be threatened
with moral or physical harm the Judge of the Children's Court may place it
under supervision. It is also upon the Judge of the Children's Court that
Articles 372 a and 372 b of the Code confer the power to place the child in
an observation centre or, if it needs special discipline, in an appropriate
institution. Under Article 461 c it is for the Judge, on the initiative of
the Guardianship Council, to order the necessary steps when the infant is
not under required legal authority or in other cases of urgency. It must be
added that such exceptional measures of protection with regard to a child
remaining in Sweden would, in practice, be the same as would be taken by
Swedish authorities in similar circumstances and that therefore no
considerations of Swedish ordre -public would stand in the way of their
execution.
Undoubtedly, the task of Dutch judicial authorities in taking the measures
in question might be rendered somewhat more difficult than would otherwise
be the case seeing that they might have to obtain the necessary information
with regard to a situation in a foreign country. But these
difficulties�which lie wholly outside any legal problem of the applicability
of foreign administrative law�are inherent in a Convention which sanctions
and prescribes the operation of the national law of the infant. In days of
rapid travel, which makes possible visits by the interested parties or
representatives of Guardianship Councils or other institutions, and
facilities of postal communication, these difficulties are considerably
reduced. In any case, as stated, they refer to a wholly exceptional
situation; as such they appear somewhat unreal when adduced as a decisive
factor with regard to the interpretation of the Convention. They seem to me
an unsubstantial ground for permitting a departure from its language and
purpose. For these reasons, 1 cannot accept that particular argument
advanced on behalf of the Government of Sweden.
***
As already stated, reliance upon ordre public�public policy�� constitutes
the main feature in the written and oral pleadings of the Parties. This is
the only submission, in the nature of legal prin-[p 89]ciple, in the final
Conclusions of the Parties. The Court is not rigidly bound to give judgment
by exclusive reference to the legal propositions as formulated by the
Parties in their Conclusions. However, I consider that I ought not to
disregard the Conclusions of the Parties formulating exhaustively the legal
issue between them. The position is analogous to that in which the Parties
have concluded a special agreement defining the legal issue between them and
asking the Court to pronounce upon it as part of its operative decision. It
is only when it is abundantly clear that the formulation, adopted by the
Parties, of the legal issue cannot provide a basis for the decision and that
there is another legal solution at hand of unimpeachable cogency, that I
would feel myself free to disregard the Conclusions of the Parties. Neither
of these conditions seems to me to obtain in the present case. (It may be
pointed out in this connection that the position is here different from that
in the Fisheries case in which the Court declined to render judgment by
reference to general "definitions, principles and rules" formulated by one
Party. I.C.J. Reports 1951, p. 126.) Admittedly, the legal issue as thus
expressed by the Parties in their pleadings and Conclusions in the present
case touches directly upon a difficult and controversial question which has
constituted one of the crucial problems in the sphere of private
international law and which brings into prominence the relation between
private and public international law.
***
Does the Guardianship Convention of 1902, which contains no express
exception of ordre public, permit reliance upon it? This seems to be the
crucial question. However, before an attempt is made to answer it, there are
two preliminary observations which must be made in this connection.
The first is that caution must be exercised with regard to the manner in
which the question is put in the present context. It seems incorrect to put
the problem in some such form as: "Shall the Court apply the Convention or
shall it apply ordre public? Which comes first?" For there is no question
here of choosing between the Convention and ordre public. If that were the
alternative, clearly the Court would have no option but to apply the
Convention. The question is whether the Convention, viewed in its entirety
and in the light of relevant principles of interpretation�and not merely by
reference to its bare letter�permits the exception of ordre public. For
these reasons no assistance can be derived from the various pronouncements
of the Permanent Court of International Justice to the effect that national
legislation cannot be validly invoked as a reason for non-compliance with an
international obligation. The problem now for the Court is, exactly, what is
the international obligation at issue. [p 90]
The second preliminary question is whether legislation relating to
protective upbringing of children is properly comprised within the sphere of
ordre public, that is to say, whether, notwithstanding any apparent treaty
provision to the contrary, ordre public covers exceptional measures for the
protection of minors in addition to and to the exclusion of guardianship
operating in normal circum-stances. That question must clearly be answered
in the affirmative. Apart from criminal law, it is difficult to conceive of
a more appropriate and more natural object of ordre public, as generally
understood, than the protection by the State of infants, especially when
they are helpless, ill, an actual or potential danger to themselves or to
society, a legitimate object of its compassion and assistance, and an
occasion for public resentment whenever the State fails to measure up to its
responsibilities in this respect. There are, in that wide and highly
controversial province of ordre public, matters which are the object of
uncertainty and occasional exaggerations of national prejudice reluctant to
apply foreign law. But there is a hard core within that field which is not
open to reasonable challenge. The protection of children, in the sense
indicated above, is an obvious particle of that hard core. Mention may be
made in this connection, as emphasizing this aspect of guardianship (which
is exemplified, in its wider sense, in the system of protective
upbringing), of the fact that in English law the Crown as the parens
patriae�the parent of the country as a whole�is the supreme guardian of
infants and, through its Courts, exercises its authority in this respect, at
every stage, with total disregard of any artificial formalities of the law.
The Guardianship Act of 1925 provides in Section 1 that, when in proceedings
before any court custody or upbringing of an infant are in question, the
Court in dealing with the matter "shall regard the welfare of the infant as
the first and paramount consideration" and shall not decisively take into
account any claim, based on any particular rule of law, of the father or the
mother to a superior right of custody and control.
The notion of ordre public is generally used in two meanings: It is either
applied as referring to specific spheres of the law, such as territorial
laws, criminal laws, police laws, laws relating to national welfare, health
and security, and the like; from this point of view, protective upbringing
clearly comes within the notion of ordre public. Secondly, it is resorted to
as embracing, more generally, fundamental national conceptions of law,
decency and morality. From this point of view, too, the protection of the
interests of the minor through measures such as protective upbringing falls
naturally within the notion of ordre public. (It may be stated in the
present context that although in this Opinion the French term ordre public
is mainly used, it is not used as implying a substantial difference [p 91]
between it and the notion of public policy in common law countries such as
the United Kingdom or the United States of America� although probably the
conception of ordre public is somewhat wider. It is used here for the reason
that it is current in the law of two States which are parties to the
dispute.)
Admittedly, in answering the question as here put we are confronted with
the following dilemma: Is it the Swedish ordre public by reference to which
that question must be answered? If that is so, is the Court competent and in
the position to examine a matter of Swedish ordre public, of Swedish
municipal law? It is clear that that question must be answered in the
affirmative. The examination of municipal law, wherever that is necessary,
is a proper function of the Court; it has undertaken it on repeated
occasions. Neither do the intricacies of ordre public set a limit to that
legitimate function of the Court. In the Serbian Loans case the Court
examined the French law and the French judicial practice in the sphere of
ordre public in relation to currency legislation (P.C.I.J., Series A, Nos.
20/1, pp. 46, 47). However, the question that must be answered in this
connection is not only whether protective upbringing of children falls,
according to Swedish law, within the Swedish ordre public but also whether
it can properly be included as failing within that sphere. That question
cannot be answered by reference to Swedish law only. It can be answered in
reliance on a notion of ordre public conceived as a general principle of
law�an aspect of the question referred to below.
***
If protective education of children falls legitimately within the sphere of
public order, then�and only then�there must be considered the main
question, namely, whether public order, if not expressly permitted by the
Convention, can be invoked at all; whether it has been properly invoked in
the present case; and, if so, whether the Law on Protective Upbringing has
been applied by the Swedish authorities in a manner which is reasonable and
not manifestly contrary to the object and the principles of the Convention.
Does the conception of ordre public operate at all in the present case? This
is the central issue before the Court. It can be examined here only in brief
outline:
In the first instance, the Convention now before the Court is a Convention
of public international law in the sphere of what is generally described as
private international law. This means: (a) that it must be interpreted, like
any other treaty, in the light of the principles governing the
interpretation of treaties in the field of public international law; (b)
that that interpretation must take [p 92] into account the special
conditions and circumstances of the subject-matter of the treaty, which in
the present case is a treaty in the sphere of private international law.
Secondly, in the sphere of private international law the exception of ordre
public, of public policy, as a reason for the exclusion of foreign law in a
particular case is generally�or, rather, universally �recognized. It is
recognized in various forms, with various degrees of emphasis, and,
occasionally, with substantial differences in the manner of its application.
Thus, in some matters, such as recognition of title to property acquired
abroad, the courts of some countries are more reluctant than others to
permit their conception of ordre public�their public policy�to interfere
with title thus created. However, restraint in some directions is often
offset by procedural or substantive rules in other spheres. On the whole,
the result is the same in most countries�so much so that the recognition of
the part of ordre public must be regarded as a general principle of law in
the field of private international law. If that is so, then it may not
improperly be considered to be a general principle of law in the sense of
Article 38 of the Statute of the Court. That circumstance also provides an
answer to the question as to the nature and the content of the conception of
public policy by reference to which there must be judged the propriety of
the Swedish legislation in the matter. Clearly, it is not the Swedish notion
of ordre public which can provide the exclusive standard in this connection.
The answer is that, the notion of ordre public�of public policy�being a
general legal conception, its content must be determined in the same way as
that of any other general principle of law in the sense of Article 38 of the
Statute, namely, by reference to the practice and experience of the
municipal law of civilized nations in that field. It is by reference to some
such considerations that I have, in an earlier part of this Opinion,
attempted to answer the question whether the Swedish Law on Protective
Upbringing can properly be regarded as falling within the domain of ordre
public.
For these reasons the correct interpretation of a convention on private
international law must take that general recognition of public order fully
into account. The same result is reached by way of another, no less cogent,
principle of interpretation: In a case concerned with the interpretation of
a treaty relating to a particular matter with regard to which the law and
practice of both parties recognize the applicability of certain principles,
due weight must be given to those principles. To give an example: If the law
and practice of Sweden and Holland were to recognize that the distance of
twenty miles is the proper limit of territorial waters, and if these two
States were to conclude a treaty laying down that their vessels shall be
bound to submit to certain restrictions within their res-[p 93]pective
territorial waters, then the expression "territorial waters" would have to
be interpreted in the sense attached to it by the law and practice of those
two States, namely, as extending to twenty miles. By the same token, if the
law of Sweden or Holland recognizes the exception of public order in the
sphere of private international law, then that factor must be considered as
relevant to the interpretation, as between them, of the treaty in question.
It is well known, and it is admitted by both Parties, that both in Sweden
and Holland ordre public constitutes a valid reason for the exclusion of
foreign law. Accordingly, the fact that a particular subject of private
international law is covered by a convention does not, in the absence of an
express prohibition to the contrary, in itself exclude the operation of
ordre public, even if the convention is otherwise silent in the
matter�provided always that the State invoking ordre public is, if its
decision to invoke it is challenged, willing to submit to an impartial
judicial or arbitral determination of the issue. The latter condition
follows inevitably from the principle that a State which invokes an
exception not expressly recognized by the treaty cannot claim the right to
determine unilaterally whether that exception applies.
At the same time, and this is the third main consideration in the present
context, the circumstance that the Parties are bound by treaty in relation
to a particular subject of private international law sets a limit to the
application of ordre public. It does so in three respects:
In the first instance, the existence of the treaty imposes upon municipal
courts an obligation of restraint in invoking ordre public �a restraint
additional to that which they impose upon themselves in matters of private
international law generally. This is admitted by both Parties. In fact, it
is one of the objects of a treaty bearing upon private international law to
set some further limit to reliance upon ordre public.
Secondly, the existence of a treaty limits the discretion of national courts
in determining whether a particular subject is within the domain of ordre
public; it limits it in the sense that in case of a dispute, and provided
that an international tribunal is endowed with the requisite jurisdiction,
it is for that tribunal to determine the matter. This, too, is in substance
admitted by both Parties.
Thirdly�a view contended for by Holland but denied by Sweden �in the case of
a dispute as to the manner in which the national authority has applied the
exception of ordre public, that question is subject to review and
determination by an international tribunal, if otherwise competent in the
matter. That aspect of the question is examined later in this Opinion.
Applied to the present case, these principles mean, in general, that the
exception of public order is admissible within proper limits [p 94] and
that, there being a dispute as to whether these limits have been observed,
it is for the Court to decide whether the notion of public order has been
properly invoked and applied. As stated, I have come to the conclusion that
reliance on ordre public in relation to a Law on Protective Upbringing is
fully justified and that, therefore, ordre public has been properly invoked.
I will revert presently to the question whether the proper application of
ordre public has been satisfactorily proved in this case.
***
Reference must be made in this connection to certain views expressed during
the written and oral proceedings with regard to ordre public, in particular
the opinion that reliance upon it is inconsistent with the purpose of
treaties on private international law and that ordre public ought to be
interpreted restrictively in that sphere or refused recognition altogether.
In particular, it was argued that because of its comprehensiveness and
elasticity it has been the cause of uncertainty and confusion, that it has
been a disturbing element in that field, and, more emphatically, that it has
been destructive of private international law. There is some substance in
these considerations. However, they cannot in any way be decisive.
Admittedly, the notion of ordre public�like that of public policy �is
variable, indefinite and occasionally productive of arbitrariness and abuse.
It has been compared in this respect, not without some justification, with
the vagueness of the law of nature. Admittedly also, it has often been the
instrument or the expression of national exclusiveness and prejudice
impatient of the application of foreign law. Yet these objections, justified
as they are, do not alter the fact that the principle permitting reliance on
ordre public in the sphere of private international law has become�and that
it is�a general principle of law of most, if not all, civilized States. More
than that: It is, on its own merits, part and parcel of the entire doctrine
and practice of private international law almost from its very inception;
the two are inseparable, not only as a matter of history but also of
necessity; they have grown together in a mutual interaction and compromise.
The purpose of private international law is to make possible the
application, within the territory of the State, of the law of foreign
States. This is an object dictated by considerations of justice,
convenience, the necessities of international intercourse between
individuals and indeed; as has occasionally been said, by an enlightened
conception of public policy itself. But there is an obvious element of
simplification in the view that the law of a State should be deemed to have
consented or that it should reasonably be expected to consent in advance to
the application of foreign law without any limitations, in any circumstances
whatsoever, without [p 95] a safety valve, without a residuum of
contingencies in which, because of the very nature of its structure and the
fundamental legal, moral and political conceptions which underlie it, it
should be able to decline to apply foreign law.
Within the State, the judicial use of public policy�of ordre public�has
often been exposed to criticism. But it is seldom, if ever, suggested that
it is not an indispensable instrument of the interpretation, application and
development of the law. If that is so in relation to the national law of the
State which may be changed by ordinary legislative processes, it is
particularly so in relation to foreign law over which the State has no
control and which, in certain circumstances, its courts may find it
inconceivable to apply. History�modern history�has occasionally produced
examples of legislation manifesting eruptions of malevolent injustice, or
worse, to which courts of foreign countries may find it utterly impossible
to give effect and with regard to which the right to denounce the treaty may
not provide a timely or practicable remedy.
It is that residuum of discretion, it is that safety valve, which has made
private international law possible at all, and which, if kept within proper
limits, is one of the principal guarantees of its continued existence and
development. It is significant that an important part of the contribution of
the most illustrious exponents of private international law�such as Story,
Savigny and Pillet� lay in their effort to formulate the notion of ordre
public and the limits, often wide and general, of its application. Ordre
public is, and ought increasingly to be, subject to reasonable limitations
in accordance with the main purpose of private international law. But the
problem cannot be solved by the device of shelving it. It can be alleviated
by the existence of international remedies of judicial control and review
whenever there exists the requisite jurisdiction of an international
tribunal. The present case afforded an opportunity for acting in that way.
***
The preceding considerations may also offer assistance in answering the
question whether the existence of a treaty sets a limit to reliance on
public policy in the sense that the latter cannot be properly invoked unless
the treaty contains an express exception to that effect. That question must
be answered in the negative. Obviously, the treaty may expressly, or by
implication, prohibit recourse to ordre public. Thus it is occasionally
maintained that the Hague Convention of 1902 on the Conclusion of Marriage
contained such prohibitive implication by enumerating exhaustively the [p
96] reasons for which the lex fori could disregard the impediments to
marriage established by foreign law. (Yet it is significant that, in spite
of the Convention, practically all parties to it refused to recognize, prior
to the Second World War, the impediments established by the German
Nuremberg Laws. Although Dutch Courts applied the Convention in this
respect, they often found circuitous means of defeating the Nuremberg Laws
in question.)
However, apart from an express or clearly implied prohibition, the correct
principle seems to be that a convention in the sphere of private
international law does not exclude reliance on ordre public. Nothing short
of an express prohibition can rule out reliance on a firmly established
principle of private international law. This seems to me to be the fairly
unanimous view of writers. They include authorities of the calibre of
Professors Batiffol and Niboyet. This is also the emphatic view of an author
who has devoted special attention to questions of private international law
in relation to treaties (Plaisant, Les règles de conflit de lois dans les
traités, 1946, pp. 91-94). Professor Lewald, a balanced and authoritative
writer to whose views I attach importance, provides no clear exception to
that virtual unanimity. In 1928, writing in the Revue de droit
international privé (pp. 164 et seq.), he stated, though with very
considerable hesitation, that, a priori, if the treaty is silent on the
ques-tion of ordre public, the latter cannot be invoked. In 1930, when
writing in the Répertoire de droit international (Vol. 7, p. 308), he
expressed a different view, namely, that in such cases the answer to the
question depends on the interpretation of a particular treaty and that it is
impossible to give an answer a priori. There is little judicial practice
directly applicable to this matter.
***
In this connection reference may also be made to the preparatory work of the
Convention of 1902. The study of that preparatory work shows that there was
opposition�effective opposition�to incorporating in the Hague Conventions
any general clause permitting reliance on ordre public (though no
discussion on the subject took place with regard to the Convention on
Guardianship). Does that mean that there was an intention to exclude
altogether recourse to ordre public unless in cases expressly authorized?
It may be doubted whether that was so. The authors of the Conventions wished
to avoid the complications of a general and express authorization, of a
general blank cheque, with regard to a notion so elastic and so
comprehensive as ordre public. It is natural that they did not wish to
inject into the Conventions, in express terms, a potential source of
controversy or abuse. But does that mean that, by mere silence, the authors
of the Conventions excluded indirectly from the operation of the Convention
a firmly-established principle of private [p 97] international law? That is
not probable. It is doubtful whether Governments would have signed and
ratified these Conventions if they had expressly denied the right to invoke,
in any circumstances, their ordre public as a reason for excluding foreign
law.
***
There is one factor of importance which is directly relevant to the question
whether ordre public can be invoked by the Parties in the present case in
relation to the Convention of 1902. That factor is that in this respect the
Court is confronted with a substantial measure of agreement between the
Parties. The Dutch Government has repeatedly, although in a highly qualified
manner, given an affirmative answer to that question�subject to the
obligation of the parties to the Convention to proceed with particular
caution, with special restraint and with exacting meticulousness in limiting
the operation of the treaty by reference to ordre public. That attitude was
maintained in Conclusion II of the Netherlands, in which the denial of the
right to invoke ordre public is qualified by the word "generally" and, even
more so, in Conclusion III, A and B, which asserts the power of the Court
to determine whether the conditions of ordre public have been complied
with, having regard to the character of the case and the provisions of the
Swedish Law on Protective Upbringing�a conclusion which can be understood
only on the assumption that there was no intention to deny, in principle,
the right to invoke ordre public. This�the agreement of the parties on a
matter of basic principle� is a significant legal aspect of the situation;
it makes it difficult to maintain that public order cannot be invoked unless
specifically provided for in the Convention.
Admittedly, the Dutch Government denies that in the present case there is
room for resort to ordre public. It does so for two reasons: The first is
that the obligation of caution and restraint binds the Parties not to invoke
it unless there is a requisite element of close territorial connection, and
that there is no such connection in the present case. It is difficult to
follow that contention. It is not easy to imagine a closer connection
between the minor in question and the country which relies on ordre public.
Elisabeth Boll was born in Sweden; so far as is known, she speaks Swedish
only; she has resided permanently in Sweden since her birth. I do not find
convincing the argument that, according to Dutch law, Elisabeth Boll shares
the legal Dutch domicile of her Dutch guardian or that, if she is not
domiciled in Holland, it is only because the Swedish measure of protective
upbringing, said to be in violation of the Convention, prevents her from
being brought to Holland. The question of domicile, which is a question of
fact and intention, is not properly answered by arguments of this nature. [p
98]
Neither is it easy to follow the second reason advanced by the Dutch
Government in the sense that the necessary territorial connection is
lacking, seeing that this is a "transfer case", namely, that if only the
transfer of the child to Holland were made possible, in accordance with the
Convention, then there would be no question of anything happening on
Swedish territory which is contrary to Swedish ordre public. There is no
more force in this argument than in the suggestion that a State has no
reason to refuse to hand over a political refugee to prosecution and
persecution in a foreign country considering that such prosecution and
persecution will take place in foreign territory. Yet it is apparent that in
cases such as these the very fact of intended transfer is decisive for the
purpose of relying upon ordre public seeing that the transfer is deemed
contrary to the fundamental notions of public law of that State and that it
may be productive of a revulsion of public opinion as being flagrantly
offensive to national conceptions of decency. Public opinion is not easily
reconciled to the view that the moral and social responsibility of the State
has been discharged by the simple device of removing to a foreign country
the object of possible persecution and suffering. This would be too easy a
means of salving the conscience. When, therefore, it is argued that a
"removal case" is not sufficiently connected with the country of the forum
to warrant the application of ordre public, the correct answer is probably
that there are very few occasions in which the connection is more obvious.
These, then, are the two main grounds�the two only grounds� which the
Netherlands have adduced against the application of ordre public in this
case: the absence of connection and the character of a "removal case".
Neither of these grounds seems to be acceptable. If they are not acceptable,
then there are no grounds which, on the Dutch submission, prevent reliance
upon ordre public.
***
There must now be considered the question of the extent to which the Court
is called upon to examine the issue of the propriety of the appeal to and
of the manner of application of ordre public in the present case. It is upon
the answer to a question of this kind that there must, to a substantial
degree, depend the position of ordre public in the development of this
branch of the law.
Both Parties are in agreement that the Court is competent to decide whether
the Swedish Law on Protective Upbringing comes within the sphere of ordre
public and whether it has been properly invoked for that purpose. In
particular, the Government of Sweden does not deny that the Court is
competent to determine whether in principle the Swedish Law on Protective
Upbringing belongs to the category of ordre public. In its Conclusions it
asked the' Court to [p 99] hold that the Convention of 1902 does not affect
the right of the Parties to impose upon foreign guardians the restrictions
called for by their public order. The agreement of the Parties on this
question removes to a large extent the ground from the criticism directed at
reliance on public order by reference to its disintegrating effect as
opening wide the floodgates of wholesale nullification of this and similar
Conventions by the simple means of asserting unilaterally that a particular
law under which the measure was taken is in the domain of ordre public. For
both Parties agree that it is for the Court, and not for them, to decide
that issue.
At the same time, the Parties are not in agreement on the question whether
the Court is entitled to examine the grounds on which, by reference to the
Law on Protective Upbringing, the Swedish authorities decided to decree and
to maintain the measure which they had taken. Sweden denied such competence
in her Conclusions and in the course of the written and oral proceedings. On
the other hand, the Government of the Netherlands repeatedly asserted the
competence of the Court in that respect. This it did both in the Conclusions
and by way of a formal intervention in the course of the oral proceedings.
The Agent for the Netherlands insisted that the Court was competent to
examine "every fact, every circumstance, every motive" pertaining to the
application of the Swedish law and that this being a case of a treaty
obligation no reliance on a charge of denial of justice was necessary for
that purpose.
I accept the Dutch Conclusion III A, according to which the Court is
competent to appreciate, in the light of the relevant facts and
circumstances, whether the conditions of ordre public have been complied
with. The Court is competent to decide not only whether the Law on
Protective Upbringing falls within the notion of ordre public, but also
whether it has been applied reasonably and so as not to defeat the true
objects of the Convention. I am unable to accept the Swedish view that the
Court, not being a court of appeal, is not entitled to examine that aspect
of the question. Suppose the Swedish authorities had decided to apply the
Law of Protective Upbringing to a child of Dutch nationality, born in
Holland and speaking Dutch only, and who had been resident in Sweden only
for one month. Would this Court be precluded from taking these facts into
consideration? Recourse to ordre public, especially if not expressly
authorized by the Convention, is in the nature of an exception. It is a
permissible exception. But it is an exception which must be justified with
some particularity. If a State takes action which, on the face of it,
departs from the language of the Convention, then it cannot confine itself
to proving generally that the Law under which it acted falls within the
permissible exception; it must show that that exception was applied
reasonably and in good faith. [p 100]
When there is no treaty binding upon a State, it has very
considerable�although not unlimited�discretion in applying its system of
private international law in relation to ordre public. But when that State
is bound by a treaty in relation to a particular subject-matter, it can
invoke public order only if, in case its action is challenged, it is
prepared to submit the legality of its action to impartial decision. It is
that jurisdiction which removes the notion of and recourse to ordre public
from the orbit of uncertainty, pure discretion and arbitrariness and which
endows the treaty with the character of an effective legal obligation. It is
that subjection to judicial or arbitral determination, as the very condition
of legitimate reliance on ordre public in cases not expressly provided by
the treaty, which saves ordre public in such cases from the reproach of
being a cover for a unilateral repudiation of the treaty and which gives it
the character of an attempt to secure a just and reasonable interpretation
of treaty obligations. The present case provided an opportunity for
asserting and giving effect to that principle. The task of such factual
examination may be difficult, and, occasionally, invidious. Nevertheless, it
constitutes a proper exercise of the judicial function in relation to a
dispute which is one both as to the law and fact in the meaning of Article
36 of the Statute of the Court.
In the present case the Parties have not laid before the Court the facts
which would enable it to decide with any assurance on this aspect of the
question. The Government of Sweden did not act upon the offer, formally made
by it in the final Submissions in the Counter-Memorial and repeated during
the oral proceedings, to lay before the Court the relevant documents. It is
true that it was open to the Court, at any stage of the proceedings, to ask
for their production. In particular, Article 49 of the Statute provides that
"the Court may, even before the hearing begins, call upon the agents to
produce any document or to supply any explanation". However, it is not
necessary in this connection to consider the problem of the function of the
Court, under that and other Articles of the Statute and the Rules, as an
agency called upon to clarify and substantiate the basis of its decisions by
active initiative in the elucidation of the relevant factors both before and
during the oral proceedings. For there was no reason why the Government of
Sweden should not have supplied the necessary information of its own accord,
in the event that the Court should find that it could properly examine it. A
State invoking an exception cannot be too forthcoming in producing evidence
in justification of it. It ought not to limit itself to vague�and, from the
point of view of ordinary rules of evidence, probably inadmissible�allusions
as to the possible contents of the evidence which, by its own decision, it
has failed to produce. At the same time, in the exercise of its jurisdiction
of review, a legal tribunal must attach importance to the appreciation of
the facts by local authorities�of the authorities of the State [p 101] where
the child was born and is domiciled. Their decision must not be lightly
disturbed. This is so in particular if the applicant Government, while
inviting the Court to decide upon the factual aspects of the-issue and the
motives underlying the decision of the local authorities, has failed to
bring to its notice any facts suggesting that the discretion of the Swedish
authorities has not been exercised properly and in good faith. In all the
circumstances, on such evidence as there is, I am bound to assume that the
action of the Swedish authorities was not such as to constitute a
misapplication of the Law on Protective Upbringing on which they were
clearly entitled to rely as part of their ordre public.
***
The above considerations explain why, subject to differences of approach and
reasoning, I concur in the operative part of the Judgment rejecting the
demand of the Government of the Netherlands.
(Signed) Hersch Lauterpacht.
[p 102]
SEPARATE OPINION OF JUDGE MORENO QUINTANA
[Translation]
To my great regret, although I am fully in agreement with them concerning
the judgment at which they arrive in this case, I am unable to share the
opinion of the majority of my colleagues who give as the sole determining
reason for their decision the fact that the Swedish law of June 6th, 1924,
on the protective upbringing of children is of a different nature from the
Convention of 1902 which governs the guardianship of infants as between the
Netherlands and Sweden.
The chief consideration in my mind is that a question of principle has to be
settled, namely, the question whether the ordre public of one of the Parties
in the case can be invoked against an international Convention which is
binding on both Parties. The Applicant in this case attaches fundamental
importance to this question, as also does the Respondent. Decisive as it is
for the settlement of this dispute, the reason first mentioned above does
not, in my view, furnish sufficient ground for a decision on a dispute
relating to a fundamental question of law. I hold a very definite view on
this question, and I must also point out that, far from ruling one another
out, the two grounds supplement each other quite logically. For, though the
Convention in question is not infringed in this case, because legally it is
of a different nature from the law on protective upbringing, it is the ordre
public character of that law which marks the difference. A law of an
entirely different nature could never, even in an incidental way, impede the
complete accomplishment of an international convention.
Side by side with its function of deciding "in accordance with international
law such disputes as are submitted to it", as mentioned in Article 38,
paragraph 1, of its Statute, the International Court of Justice has
also�notwithstanding the limitation which Article 59 prescribes for its
decisions�a doctrinal function of the greatest importance. The Court can and
must discharge this function in the present case with a view to the
progressive development of international law on the question submitted for
its consideration concerning the principle of the relationship between
ordre public and an international Convention. Paragraph 1 (d) of Article 38
of the Statute moreover enjoins the Court to apply "the teachings of the
most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law".
For these reasons, I shall furnish grounds for my separate opinion, which
is in favour of the contention advanced by the Respondent, by analyzing the
legal scope of the said principle in this case. [p 103]
***
The case before the Court is one which relates to questions within the
domain of private international law. Such a situation was dealt with by the
Permanent Court in its judgment in the Serbian Loans Case in the following
terms:
"Any contract which is not a contract between States in their capacity as
subjects of international law is based on the municipal law of some country.
The question as to which this law is forms the subject of that branch of law
which is at the present day usually described as private international law,
or the doctrine of the conflict of laws. The rules thereof may be common to
several States and may even be established by international conventions or
customs, and in the latter case may possess the character of true
international law governing the relations between States. But apart from
this, it has to be considered that these rules form part of municipal law."
(Collection of Judgments, Series A, Nos. 20/21, p. 41.)
These are notions that are applicable to the present case since treaties
which, like that with which it is concerned, are designed to achieve
unification of the rules deriving from the application to private persons of
particular State laws, undeniably have the character of private
international law treaties. The original title: "Case concerning the
guardianship of an infant" was subsequently, and very wisely, changed to
"Case concerning the application of the Convention of 1902 governing the
guardianship of infants", and this new title is undoubtedly much more in
accord with the scope of the judgment to be given by the Court in this case.
We are confronted with an intervention of what may properly be described as
public international law in the matter of the interpretation of an
international Convention. And it is for the Court, as a judicial organ, to
decide the matter. The Court's jurisdiction is clearly established by
Article 38, paragraph 1, of the Statute� to which I have already
referred�the imperative character of which is beyond doubt. A conversion of
private international law into public international law has occurred and
this enables the Court to exercise its judicial powers.
The Court has to adjudicate upon the case of an infant. This infant was the
subject of a measure of protective upbringing taken by the competent Swedish
authorities which, it is argued, falls outside the legal framework of the
Convention and, furthermore, falls within the ordre public of Sweden. To
this the Applicant has replied that the Respondent is in breach of the
Convention which constitutes the legal norm applicable to the guardianship
of infants of both countries. It is not precisely a denial of justice that
the Applicant alleges against the Respondent, but rather the fact that a
measure deriving from the law of Sweden has been applied to a [p 104] child
whose guardianship is governed by the law of the Netherlands. In other
words, the Netherlands consider that Sweden has violated her international
obligations under the Convention, which provides that the national law of
the infant is the norm applicable to its guardianship. Without disputing
this view, the Respondent contends that the measure adopted is not covered
by the Convention, and that since, in any case, it comes within the domain
of ordre public, it constitutes a bar to the application of the foreign law.
A wise rule on the subject which must serve as a point of departure for the
decision in the present case is supplied by the great Savigny, in his
Systeme du droit romain actuel. The judge, he says, must apply to each legal
relationship the norm which is most in conformity with the specific and
essential nature of that relationship. This law may be the law of a
person's own country or it may be that of a foreign State. But this
principle, which establishes a uniformity of law between the different
States, is subject to an important restriction�the restriction based upon
the existence of several species of laws of a special nature, including laws
which are positive and strictly compulsory in character, such as those which
are dictated by reason of general interest (publica autoritas) (see French
translation, Paris, i860, Vol. 8, para. CCCXLIX).
In the present proceedings, the crux of the case is constituted by the
question whether ordre public may validly be invoked against an
international convention. That is to say, the question at issue is that of
the relationship between the application of the 1902 Convention which
governs the guardianship of infants and which is law as between the
Netherlands and Sweden, and the measure of protective upbringing taken by
Sweden in respect of Marie Elisabeth Boll. Both Parties attribute cardinal
importance to this, devoting to it the greater part of their arguments.
While the Netherlands claim that the maintenance of the measure is contrary
to the Convention on the ground that it impedes the full exercise of
guardianship', Sweden contends that she has merely applied her ordre public
in the present case. However, what are involved are procedures which are of
different scope, which are carried out in two different national legal
spheres but which affect one and the same situation, the custody of the
infant. It is on that point that there is conflict between two laws, the
Dutch law on guardianship and the Swedish law on protective upbringing.
Sweden has in no wise challenged the legal existence of the guardianship
instituted under Netherlands law in accordance with Article 1 of the
Convention. In its decision of September 16th, 1954, the Norrkoping court
rejected the application to this case of the Swedish law on guardianship.
Sweden maintains that her law on the protective upbringing of infants, of
June 6th, 1924, is quite different in object and in scope from the
institution of guardianship, a typical institution of family law, to which
the 1902 Convention relates. But the difference of the Swedish Law in
relation to the 1902 Convention will not [p 105] of itself enable the Law to
override the Convention. To do so it must fall within the or dire public, a
concept which confers upon it the validity which enables it to extend its
legal effects on the international plane.
***
The concept of ordre public which is so clear and well defined in the legal
systems derived from the so-called continental law in the latin countries,
does not seem always to be understood in the same way in other legal
systems. As a result, certain of the interpretations given by the Parties in
the present case, have become somewhat distorted. In order to arrive at a
legal solution, there is, I think, no need to construct theories and draw
distinctions which merely confuse the issue. I understand ordre public to be
the whole body of laws and legal instruments whose principles cannot be set
at naught either by special conventions or by a conflicting foreign law. Its
provisions have retrospective effect and definitively acquired rights cannot
be invoked against it. The judges should apply it in spite of any
international convention. It finds its basis in the need of each State to
provide itself with fundamental institutions in the field of its political
and social organization. Those institutions, in particular, which govern the
family, child welfare, inheritance and public morals, indubitably have this
character.
The Swedish Government contends in its Rejoinder (pp. n et seq.) that its
law on protective upbringing falls within the sphere both of public law and
of ordre public. But although the effect of these two elements may be the
same in regard to its invocation as against the application of a foreign
law, what are involved are different legal concepts. Indeed, public law has
a very specific role: that of providing for the political structure of the
State by adjudicating upon interests that are supremely collective. In this
connection, the constitution of a country, its economic system or its
social organization are manifestations of the activity of its public law.
But it is not always easy to draw a hard and fast line between the two
branches of law. A single law, such as that of Sweden on protective
upbringing of children, may reveal aspects of public law and aspects of
private law. It belongs to public law in so far as it protects children in
general; it belongs to private law when it affects the position of
individuals. The concept of ordre public, being much broader, embraces that
of public law. That is why it is unnecessary in the present case to invoke
the scope of public law in order to show that the protective upbringing of
children is one of the primary institutions of ordre public. [p 106]
In relations which are derived from private international law there is a
principle of the limitation of the authority of a foreign law. This
principle comes into play whenever the foreign law is in conflict with the
ordre public of the country where it is to be applied. Each State interprets
it by virtue of its national legislation according to the principles which
may at a given moment govern its social organization. This concept may vary
considerably from State to State, but one common feature is always
recognized: the feature which identifies it with the permanent interests of
a nation when that nation provides for its State function of securing
respect for individual rights. In those circumstances, the full force of the
lex fori which has the character of a law of ordre public remains unimpaired
in the relations flowing from private international law. In its judgment,
which I have already cited, in the Serbian Loans case the Permanent Court
referred to the difficulty of defining ordre public "a conception the
definition of which in any particular country is largely dependent on the
opinion prevailing at any given time in such country itself..." (Collection
of Judgements, Series A., Nos. 20/21, p. 46). The well-known Cuban
international lawyer, Antonio Sanchez de Bustamente, the author of the code
of private international law which bears his name, agrees that laws which he
calls of domestic ordre public, such as those governing the status and
capacity of persons, family relationships, inheritance, etc., in a State are
peremptory in character; they are binding both on persons having their
residence in the State and on the nationals of the State, and prevent the
application of a foreign law (Art. 3, para. 1).
It has also been suggested that there is a difference between national ordre
public and international ordre public on the ground that the latter is of
wider scope with regard to its invocation against a foreign law. Many
writers recognize that this is so. Others, including myself, consider that
only national ordre public may constitute a bar to the application of a
relationship of private international law. International ordre public
operates within the limits of the system of public international law when it
lays down certain principles such as the general principles of the law of
nations and the fundamental rights of States, respect for which is
indispensable to the legal co-existence of the political units which make up
the international community. The natural society of nations, to which
Francisco de Vitoria looked forward, in the 16th century, the society which
involved the co-existence of perfect communities within a universal
community as propounded by Francisco Suarez in the following century, the
Civitas Maxima described by Christian Wolff in the 18th century, as
constituted by all States on the basis of a tacit covenant, and the legal
community of States bound by the performance of certain duties, as defined
in the last century by Friedrich Karl von Savigny, are all necessarily based
on these principles and these rights. These principles�we are all quite
familiar with them because they are very limited�and these rights, [p 107]
too, have a peremptory character and a universal scope. On the one hand, the
freedom of the seas, the repression of piracy, the international continuity
of the State, the immunity of jurisdiction and the rules governing warfare;
and on the other hand the inviolabilit3' of treaties, the independence and
legal equality of States. But, in any event, what is involved is a
conception that is entirely different from the one laid before the Court by
the Parties in this case.
Even in the absence of an express reference, any international agreement
laying down rules of private law necessarily runs up against the concept of
national ordre public. No foreign law is applicable when the principle of
the extraterritoriality of laws comes up against a case that is specifically
governed by a local law. And, by virtue of their sovereignty, States possess
at all times the power to regulate their own ordre public. Authors enjoying
universal authority assert that this is so beyond any doubt. The decisions
of several national courts are also quite decisive on this point. Teachings
in this matter are to be drawn from these authors and from these decisions.
Ordre public is indissolubly bound up with the general principles of law
recognized by civilized nations which, under Article 38, paragraph 1 (c) of
the Statute, the Court is required to apply as a main source of law in
discharging its function of deciding in accordance with international law
such disputes as are submitted to it. This means that the application of
these principles is the subject of an international undertaking by all
Members of the United Nations and by those States which have adhered to the
Statute of the Court. Jus posteriori derogat priori says the well-known
Roman maxim in accordance with which Article 103 of the Charter of the
United Nations prescribes that, in the event of a conflict between the
obligations imposed on Member-States by the Charter and obligations arising
from any other international agreement, it is the former obligations that
shall prevail. The national ordre public of Sweden consequently prevails
over the provisions of the 1902 Convention which governs the guardianship of
infants as between that country and the Nether-lands. Moreover, none of the
provisions of that Convention, and none of the opinions expressed in the
course of the preparatory work for it justify the view that the application
of the principle of ordre public was excluded.
***
Is the Swedish law on the protection of infants a law of ordre public or is
it not ? It regulates in great detail the practical methods to be employed
in the upbringing of infants who fall within the various categories
contemplated in Article 22. In particular, Articles 1, 20 and 21 which
relate to the protection of children in each commune, the supervision by the
provincial governments [p 108] with a view to ensuring the welfare of
children, and the functions of the Director-General of Social Affairs, are
all provisions of ordre public. In itself and in so far as the Court is
concerned, the Swedish law in question is no more than a fact. In its
Judgment on German interests in Upper Silesia, the Court said: "From the
standpoint of international law and of the Court which is its organ,
municipal laws are merely facts which express the will and constitute the
activities of States, in the same manner as do legal decisions or
administrative measures" (Collection of Judgments, Series A, No. 7, p. 19).
Consequently the origin of the law, the intention of the draftsman and the
possible results to which it may lead are questions which do not fall
within the jurisdiction of the Court. It is sufficient for the Court to
scrutinize the text of the law in order to ascertain whether or not it is a
law of ordre public.
However, before the ordre public of a country may be validly invoked against
an international convention there must exist a substantive connection
between the person concerned and the territory. The Parties to this case
agree�and rightly so�that permanent residence by a person in a territory can
constitute such a substantive connection. But the Applicant contended that,
in the case of the infant Boll, her residence in Sweden is a forced
residence through the application of the measure of protective upbringing.
No proof however has been brought forward by the Applicant to show that the
residence of the infant in Sweden is contrary to her personal wish. The
Applicant has thought it sufficient to invoke its national law, according
to which the domicile of a ward is chosen by its guardian. No reference has
been made to any expression of a personal desire. In any case, it is to be
presumed �and this is a presumption juris tantum�in the absence of any proof
to the contrary, that the child's living with her grandparents, her mother's
parents, in the place where she was born, where she grew up and where her
affections are centred, by no means constitutes a forced residence. Ubi
bene, ibi patria, says the well-known maxim.
***
The facts and the law in this case appear to be as follows. An infant born
in Sweden, but of Netherlands nationality because of the nationality of her
father and of the nationality acquired by her mother who was originally
Swedish, is placed under a measure of protective upbringing in the country
which she has not left since her birth. The guardianship of this infant must
be governed by her national law in accordance with a convention between
Sweden and the Netherlands. This guardianship has been duly established by
decisions of a Swedish court in the first place and subsequently by a
decision of a Dutch court, but the right of custody of the infant is impeded
by the adoption of this measure of ordre public. Is this contrary to
international law? I do not consider that it is so. The consequences flowing
from legal situations produced [p 109] by the application of territorial
laws are not in opposition to the obligations flowing from international
treaties. This is the special feature of the present case: it is concerned
with a territorial law the application of which does not debar the
application of a convention but affects a de facto situation constituted by
the custody of an infant.
Any appraisal of ordre -public in international relations is necessarily a
matter for interpretation by a court, provided that such an interpretation
does not�to use the words of the Permanent Court in its advisory opinion
concerning Polish postal service in Danzig�"lead to something unreasonable
or absurd" (see Judgments, etc., Series B, No. 11, p. 39). And would the
Court's decision be unreasonable or absurd if the result of it was to
obviate the transplantation and the suffering of a child who would otherwise
be torn from the arms of her grandparents, carried away far from the country
of her birth and obliged to live in a foreign atmosphere ? The law is not a
metaphysical creation, a consequence of cold and abstract reasoning of the
human mind, which has no regard for social reality. And States like the
Netherlands and Sweden, which have incorporated rules of private
international law in their international law, surely do not contemplate the
application of inhuman solutions. Our own Court stated in the Anglo-Iranian
case that it could not base itself on a purely grammatical interpretation of
the text and that it must seek the interpretation which is in harmony with a
natural and reasonable way of reading the text (see I.C.J. Reports 1952, p.
104).
The specific facts of the case, which led the Swedish authorities to take
the measures objected to by the Netherlands Government, are not a subject of
disagreement between the Parties. That is why the Court decided to adopt no
position with regard to them. Knowledge of them might, however, have been
extremely useful in determining whether in this particular case Sweden has
acted justifiably in putting Marie Elisabeth Boll under protective
upbringing. For, if this was not the case, I wonder whether the Respondent
would be able, before a judicial organ, to sustain its ordre public to
impede the effects of a foreign law derived from an international
convention. The decision of this Court in the Nottebohm case, in which it
wisely dissociated the questions of nationality and of diplomatic protection
as regard their capacity for functioning independently in different national
judicial systems, allows me to think that they would (see I.C.J. Reports
1955, p. 26). Not being cognizant of the facts, and no denial of justice
having been alleged against the Respondent, I must logically assume that the
latter has made a proper use of its ordre public.
(Signed) Lucio Moreno Quintana
[p 110]
SEPARATE OPINION OF JUDGE WELLINGTON KOO
I am in agreement with the operative part of the Judgment of the Court, but
I find more direct justification for it in Article 7 of the Convention of
1902 governing the guardianship of infants and I propose to develop the
reasons for my opinion.
I
The Swedish measure of protective upbringing applied to Marie Elisabeth Boll
by the Child Welfare Board of Norrkoping is based upon Article 22 (a) of the
Swedish Law of June 6th, 1924, as amended, for the protection of children
and young people. Paragraph (a) provides that the Child Welfare Board will
take measures concerning
"a child under sixteen who, in the family home, is ill-treated or exposed to
serious neglect or any other danger affecting its physical or mental
health".
The application was ordered in respect of Marie Elisabeth Boll for the
protection of her mental health as affirmed in the successive decisions of
the Child Welfare Board, the Ostergotland Provincial Government and the
Supreme Administrative Court.
Article 7 of the Convention of 1902 authorizes the application of such
protective measures by the local authorities. It reads:
"Pending the institution of a guardianship, and in all cases of urgency,
measures required for the protection of the person and interests of a
foreign infant may be taken by the local authorities."
Although the laws for protection of children in several countries, including
Sweden, have been enacted after the conclusion of the Convention on
Guardianship in 1902, the general subject of child protection had been
discussed in the national legislatures, as in the case of Sweden, before the
third Hague Conference on private international law in 1900. It appears,
therefore, reasonable to presume that the authors of Article 7 of the
Convention were not unaware of this legislative interest in the subject of
child protection as a function and responsibility of the State.
II
The question of the justifiability of the measure of protective upbringing
applied to Marie Elisabeth Boll is the crux of the dispute [p 111] in the
present case and comprises two aspects: its adoption and its maintenance.
Are they both compatible with the obligations binding upon Sweden vis-à-vis
the Netherlands by virtue of the Convention of 1902 governing the
guardianship of infants?
Marie Elisabeth Boll was placed under protective upbringing on April 26th,
1954, by order of the President of the Norrkoping Child Welfare Board, and
this order was confirmed by the Board at its meeting on May 5th, 1954. It
was stated in the "Extracts from the Minutes of the Meeting" placed before
the Court that Marie Elisabeth Boll had been placed on April 26th, 1954, in
the care of her teacher, Mrs. Birgit Berg, and that she would remain there
pending an examination in a psychiatric clinic for children. In confirming
the action taken by its President, the Board also resolved to make Marie
Elisabeth Boll a ward of the Board pursuant to Article 22(a) of the Swedish
Law of June 6th, 1924, for the protection of children and young people. No
reference was made to the Convention of 1902, and understandably so, because
it was considered at the time as purely a case of a Swedish ward since the
father had been registered as her guardian in accordance with Swedish law
on guardianship on March 18th, 1954, by the Norrkoping Court on his own
application without mentioning his Dutch nationality.
There can be no doubt that the protective measure was adopted and confirmed
as a case of urgency, for the President of the Board took the initial action
by virtue of Article 31 of the said Swedish Law, which reads as follows:
"If, in cases covered by Articles 22 or 29, the need for protective
upbringing or for transfer to public care is thought to be so urgent that
action cannot be postponed until the Infants' Bureau (that is, the Child
Welfare Board) has taken a decision, the President will have the right,
pending a decision by the Infants' Bureau, to take the person in question in
charge."
Likewise, the Child Welfare Board, in confirming forthwith the decision of
its President to place the minor under protective upbringing, also acted on
the ground of urgency by virtue of Article 25, paragraph 3, of the said Law,
as amended by the Law of May 31st, 1934, which provides:
"If the Infants' Bureau considers that the execution of the decision
concerning protective upbringing cannot be postponed without risk, it has
the right to decree that the decision will be executed without delay."
(Annex E to the Counter-Memorial.)
Even the plaintiff State in the case, in its Reply to the Counter-Memorial,
appears to have acknowledged the element of urgency in regard to the initial
adoption of the measure of protective upbringing, for it is therein stated
on page 16: [p 112]
"Soon after the decease of his wife Mr. Boll was accused, in Sweden, of
having committed an infamous crime against his little daughter, then eight
years old.
Now, as long as this accusation was pending, one can well understand and
appreciate that the Swedish authorities felt extremely reluctant to abandon
the child to a father-guardian whose possible depravity might seriously and
permanently endanger its physical and mental health."
It is clear that the application of the protective measure to Marie
Elisabeth Boll was based upon an urgent need. The fact that no reference was
made to Article 7 of the Convention of 1902 is immaterial. The important
point is that the measure in question was in fact ordered and applied on the
ground of urgency, and as such it clearly falls within the meaning and scope
of "measures required for the protection of the person of a foreign infant"
provided for in the said Article 7. The initial application of the measure
of protective upbringing to the infant was therefore clearly com-patible
with the Convention.
III
Is the maintenance of this protective measure justifiable in the face of the
Convention of 1902, particularly in view of Articles 1 and 6 thereof?
It was contended by the plaintiff State that this measure should have been
discontinued after the accusation against the father was dropped "by the end
of 1954 or the beginning of 1955" and, in any case, after he had been
released of his guardianship and replaced by Mrs. Postema, because Sweden is
under the obligation to discontinue it in view of the Convention of 1902.
Now the initial application of the protective measure has been shown to be
compatible with the Convention. Whether its maintenance is justifiable in
view of the Convention obviously depends upon the question whether the
original urgent need which had called for it still continues. If it still
exists, clearly the measure cannot be terminated without prejudice to the
health of the infant.
It may be said that Article 7 of the Convention is ancillary to Article 1
and Article 6, which are the predominant provisions of the instrument. But
it is also to be noted that the language of Article 7 makes it clear that
the effective operation of these two Articles may be retarded for a period
of time in an exceptional case when the urgent need for protection of the
person or interests of a foreign infant calls for action on the part of the
local authorities for the purpose of such protection. The right of the
national guardian to custody in the present case is not denied, but its
exercise is only incidentally impeded. It is open to the guardian to make a
[p 113] fresh application to the Swedish local authorities to end the
protective measure, at which time presumably the need for continuing it
will be reconsidered in the light of the prevailing facts and circumstances.
An examination of the text of Article 7 shows that it authorizes necessary
protective measures to be taken by the local authorities for the benefit of
the foreign infant in two kinds of circumstances: (a) pending the
organization of the guardianship; and (b) "in all cases of urgency". Any
measure taken under (a) must obviously be ended as soon as the guardianship
is organized and known to be organized, thus indicating a time-limit,
whereas in the case of a measure taken under (b), there is no indication as
to when it should be ended, except the tacit implication that it should be
ended when the urgency which has called it into being comes to an end. If
this interpretation is sound�and there is no valid reason to doubt this�the
continuance of the measure may be justified even after a guardianship based
on the national law of the infant has already come into existence. For,
unlike the circumstance in (a), the test here is the continuing need of an
urgent character.
In this connection, the plaintiff State contended (Memorial, pp. 4-8) that
Article 7 permits only special measures for the protection of the infant
and "does not and cannot permit general measures virtually amounting to
guardianship". As a general proposition this is correct. But it is to be
observed that the Swedish measure of protective upbringing does not deal
with guardianship, and it does not amount to a virtual guardianship. The
Dutch guardianship of Johannes Boll, the father, and his subsequent
replacement by Mrs. Postema in accordance with the decision of the Dordrecht
Court, was clearly recognized by the judgments of the Court of First
Instance of Norrkoping, the Court of Appeal of Gota, and finally the Supreme
Court of Sweden. To attempt to draw a distinction between special and
general measures of protection and to declare that the former is
permissible under Article 7 and the latter is not, does not clarify the
issue in law. The reason is simple. Although the measure of protective
upbringing applied to Marie Elisabeth Boll is part of a general law for the
protection of children and young people, it is, nevertheless, one of several
kinds of measures prescribed in the law and, as such, it can well be
considered as a measure of special character chosen to meet the requirements
of the particular case.
Moreover, the Swedish measure in question is aimed at the protection of the
person of the infant. For this purpose the nature and degree of the
protection must necessarily correspond to the requirements of each case. If
it is a matter of protecting the health of the infant, as it is in the
present case, appropriate measures must be taken, whether they may be
described as general or special in character. [p 114]
Finally there remains the argument advanced by the plaintiff State that the
concept of urgency must not be confused with the concept of desirability,
since a measure is urgent only as far as it is desirable and as far as it
cannot suffer any delay. This is undoubtedly correct. The question to
consider in the light of this definition, however, is whether the
circumstances which called for the application of the measure of protective
upbringing continue to exist and whether, in these circumstances, there
still persists an element of urgency for the continuance of the measure.
On the face of things the protective measure applied to Marie Elisabeth Boll
appears to have been maintained over an unusually long period. It is four
and a half years since it was first ordered by the Child Welfare Board on
May 4th, 1954, and more than two and a half years since it was again
confirmed by a decree of the Supreme Administrative Court of February 21st,
1956. The important point to determine, however, is whether the need of
protection for the infant continues to exist and whether the element of
urgency in the need remains. These are questions of fact, and the limited
information available to the Court gives no indication as to the present
state of the minor's health or as to how or why a change from the existing
regime would affect her mental well-being. What is known is the undisputed
fact that all of the decisions of the Child Welfare Board, the resolutions
of the Provincial Government, and the decrees of the Supreme Administrative
Court, acting on application or appeal of the father-guardian, the legal
guardian and the deputy-guardian for ending the measure of protective
upbringing, alluded to the consideration of the health of the infant and
stressed the need of protection from danger to her mental health, with one
exception, i.e. the Resolution of the Provincial Government of October 28th,
1955, which was, however, overruled by the Supreme Administrative Court by a
decree of February 21st, 1956. Thus the minutes of the Child Welfare Board
Meeting of May 5th, 1954, mentioned an examination in a psychiatric clinic
for children; the resolution of the Provincial Government of June 22nd,
1954, spoke of an opinion on Marie Elisabeth Boll, rendered by Dr. Eberhard
Nyman, M.O. of the Lund Hospital Psychiatric Clinic, Infants' Division; the
decree of the Supreme Administrative Court of October 5th, 1954, stated that
"the removal of the child to a wholly strange environment would at present
seriously endanger her mental health"; the minutes of the Child Welfare
Board Meeting on June 3rd, 1955, indicated that the Board "resolved to
obtain further expert medical advice before deciding whether the girl should
be removed from her present home"; and finally the decree of the Supreme
Administrative Court of February 21st, 1956, after reviewing the evidence
produced before the Provincial Government and the Child Welfare Board,
rescinded the resolution of the former and confirmed the decision of the
latter to continue the protective [p 115] measure, because, "according to
the evidence in the case, the child is still in need of wardship".
As to the present situation concerning the health of the infant, the point
is left obscure by both Parties. However, it is unnecessary for the Court to
appraise this situation. Since no charge of any abuse of power in applying
and maintaining the measure of protective upbringing has been made against
the Swedish authorities, nor has their good faith in so acting been impugned
in any way, it is reasonable to presume, on the basis of the decisions of
the Swedish authorities referred to above, that the protective measure
relating to Marie Elisabeth Boll has been maintained because of the
existence of a continuing necessity for the protection of her mental
health, and that it will, on review or on application of her guardian, be
ended as soon as this necessity ceases to exist.
IV
For the reasons stated, I am of opinion that the application of the Swedish
measure of protective upbringing falls within Article 7 of the Convention of
1902 as a right of permissible exception, even though its exercise affects
for the time being the exercise of the rights of guardianship provided for
by Articles 1 and 6 of the Convention, and that, as of the present moment,
the maintenance of the measure cannot be said to be in contravention of the
Convention.
(Signed) Wellington Koo.
[p 116]
SEPARATE OPINION OF SIR PERCY SPENDER
Whilst concurring in the decision of the Court I deem it appropriate to
deal individually with and to make certain additional observations upon
certain aspects of this case.
I propose to confine my remarks firstly to the interpretation of the
Convention in relation to the facts of this particular case, and secondly to
the submissions by the Government of the Kingdom of Sweden on Ordre public
(Public Policy).
Is "Protective Upbringing" in conformity with the obligations binding upon
Sweden vis-à-vis the Netherlands by virtue of the Convention of 1902?
The task with which the Court is confronted may I think be expressed thus:
(a) Is the Swedish Child Welfare Law 1924 as amended or any provision
thereof inconsistent or incompatible with the Convention?
(b) Are the measures of protective upbringing taken and maintained in
respect of the child under the provisions of such law inconsistent or
incompatible with the Convention?
These questions will be determined primarily by the proper construction to
be given to the Convention. It is also necessary to consider the terms of
the Swedish law under which the measures sought to be impugned by the
Netherlands were taken and to do this in the light of the interpretation to
be accorded the Convention.
The aim in the interpretation of the Convention must be to determine whether
the particular case with which we are called upon to deal, is or is not
within its ambit. Our task does not require us to go further.
The Convention, expressed as it is in general terms, must in my opinion be
interpreted and understood according to its subject-matter. The occasion for
the Convention, its purpose, the object sought to be obtained are important
considerations. Its subject-matter determined in the light of these
considerations will mark out its scope and operation.
What was the situation before the Convention? What were the defects in that
situation with which it sought to deal? In what manner was it sought to
remedy these defects and for what reasons? These are all pertinent enquiries
in the task of interpretation. The answers do not admit of much dispute.
The Convention was one of a number entered into about the same time dealing
with conflict of laws. It dealt with problems there-[p117]tofore existing
when such conflict occurred in relation to the administration of the
guardianship of minors, as between the different States. It sought to
formulate rules which would resolve difficulties inherent in this state of
affairs and to achieve agreement as between the contracting States as to the
proper law which should be applied in order to do this. The task of the
drafters was directed to a problem of conflict of laws in relation to
guardianship and its administration. This and this alone was the nature of
their task.
The Convention accordingly sought to lay down rules and to impose
obligations upon the contracting States to achieve this end. Its aim was to
bring to an end the state of affairs where the law to be applied to the
administration of the property and to the custody and control of an infant
was the subject of competing and conflicting laws between such States. Its
provisions were designed to assimilate within the respective national legal
systems of the contracting States certain provisions, in conformity with one
another, where a conflict of laws in relation to the administration of
guardianship occurred.
Where previously this conflict of laws was left to operate according to the
separate laws of each State, the aim of the Convention was to introduce
certain uniform legal rules and provisions and to substitute in cases of
conflict of laws thereafter arising these rules and provisions on the
administration of guardianship for the national laws of each State thereon.
In the light of these observations, it is at once obvious that the purpose
of the Convention was to resolve a conflict of laws existing at the time of,
or which might arise during, its currency between one contracting State and
another, in respect of the law to govern guardianship and its administration
where a child, the national of one country, was habitually resident in the
country of another contracting State, and that in order to accomplish this
purpose, it provided, subject to the provisions elsewhere appearing
therein," that the proper law to govern the guardianship should be the
national law of the infant.
It contemplated the contingency of a conflict between the laws of two
States�on the subject-matter of guardianship in each State. It was not
directed to the laws of States generally. It was confined and limited to a
conflict of the laws on guardianship and its administration. It was
concerned with that subject-matter and with none other.
Is any limitation or restriction on the guardian's right to custody and
control resulting from the operation of a law of a contracting State where
the child is habitually resident, which is not a law of or on or dealing
with guardianship incompatible or inconsistent with the Convention?
The answer must turn upon the scope and operation of the Convention and this
in turn depends upon its subject-matter. [p 118]
The characterization or subject-matter of the Convention must be determined
by looking at it as a whole. The fundamental questions are: what is its
essential character; to what subject-matter in substance does it relate? The
answers are not to be found in any abstract formulation of a general test or
criterion but by the considerations to which I have already referred.
Its essential character is in my opinion clear enough. It is that of
guardianship: its administration, and conflict of laws in respect of
guardianship and its administration. That is its subject-matter. And that in
my view marks out its scope and operation. The Convention must be construed
accordingly. So construed it does not confer upon the guardian any such
immunity. His exercise of the right to custody and control may be restricted
even in a major degree by the effects of other laws dealing with entirely
different subject-matters, without any conflict of laws within the
contemplation of the Convention arising.
But are the provisions of the Swedish Child Welfare Law of 1924 as amended,
by virtue of which the protective upbringing was brought into being, laws on
the subject-matter of guardianship?
A law may produce an effect in relation to a subject-matter without being a
law on that subject-matter. The substance of the relevant law is to be
determined by what it does�not by the effects in relation to other matters
of what the law does.
The Swedish Child Welfare Law forms a composite whole. Its provisions are
interrelated. Its subject-matter is child welfare and delinquency in the
content of the social problem they create, and the protection and welfare of
society in relation thereto.
Child welfare and delinquency recognized increasingly as a vital social
problem is of concern to the State not only in the interest of children but
primarily in the interest of the community, so that young people may become
useful members of society and not a burden upon it. In my opinion, the main
purposes of the Swedish law, which gives direction to our enquiry, are:
(a) the prevention of the creation and the continuance of corrupting homes,
and the prevention and reformation of child delinquency, and
(b) the protection of society against the consequences of the bad upbringing
of the young.
Whatever is the subject-matter of the Swedish law, it is not a law of or in
relation to "guardianship". I would hardly think any nation that has
comparable legislation would itself ever think so.
It cannot be disputed that the Swedish law does in certain circumstances
produce effects which bear on guardianship. In the [p 119] present case
Sweden does not deny that these effects are such as to interfere in a major
degree with the guardian's exercise of the right of custody and control.
That, however, does not, in my opinion, make it a law on or in relation to
or in respect to or of guardianship. Its essential character is not
determined by the effects of the law operating on particular facts and
circumstances; or by the acts which may properly be done pursuant to it and
their bearing or effect on a guardian's right to custody and control. No
conflict of laws with which the Convention is concerned accordingly arises
in principle between the Netherlands law on guardianship and those of the
Swedish law on child welfare. They relate to different subject-matters.
Their scope and operation are separate and distinct. The Convention was
concerned with and its scope and operation was limited to conflicts of laws
arising in relation to the one subject-matter, namely guardianship. In
principle the Swedish law is outside the domain of the Convention.
But this does not complete our enquiry. A State, party to the Convention,
may not, whatever the subject-matter of the law under which it acts, do
anything which contravenes the provisions of the Convention.
Is then the protective upbringing established in this case a rival
guardianship?
Is its maintenance inconsistent with the Convention or any specific
provision thereof?
As to the first question, the answer must in my view be "no" and for the
reasons given in the opinion of the Court.
And if this be so, the answer to the second question must depend upon some
specific provision of the Convention, for apart therefrom, for reasons
already advanced, no incompatibility between the measure of protective
upbringing and the Convention could be said to exist.
Is there then any specific provision of the Convention with which the
protective upbringing may be said to be inconsistent? The only specific
provision which I think needs to be adverted to is Article 7.
Does this Article mean that all other measures which may be said to protect
the person of the infant are precluded irrespective of the subject-matter or
context of the law under which or the circumstances in which those measures
are taken? In particular does it on its proper construction preclude the
measure of protective upbringing?
I think not. The Article certainly in terms does not so provide. It is in my
opinion solely directed to the protection of the person of the child in the
contingencies stated therein. It must be read within the scope and operation
of the Convention of which it is part. On its proper construction it was
never intended to preclude other measures such as protective upbringing
which have no relation whatever to guardianship. [p 120]
Article 22 (a) of the Swedish law taken together with the associated
articles thereof must be read also within the scope and operation of that
law of which it is an integral part. They cannot be lifted out of their
context. These provisions of the Swedish law and Article 7 of the Convention
operate in different fields altogether. Neither the relevant provisions of
the Swedish law nor the protective upbringing established thereunder have
anything to do with guardianship as such or with its administration; they he
wholly outside the provisions of Article 7 of the Convention. There is no
inconsistency or incompatibility.
One further observation needs to be made.
If in a particular case it could be shown that a law comparable to the
relevant provisions of the Swedish law had been used by a contracting State
not bona fide to carry out that law but for a purpose aliunde, for example
to interfere with and restrict a guardian in the exercise of his right of
custody and control as such, other and quite different considerations would
arise. But that is not the instant case. The Netherlands has very properly
conceded that Sweden acted in complete good faith under the provisions of
its law. Nor does any question of denial of justice arise. The challenge of
the Netherlands has been exclusively directed to whether the measure of
protective custody is itself in conformity with the Convention.
In my opinion the Netherlands has failed to make out any case that Sweden
has not observed the provisions of the Convention.
Ordre public (Public Policy)
The principal issue to which the Parties to this case directed their
attention was whether the Convention should be interpreted as containing an
implied reservation authorizing on the ground of ordre public or public
policy the overruling of the application of the foreign law recognized as
normally the proper law to govern the guardian's right to custody and
control of the infant. Whilst the opinion of the Court does not pronounce in
any way upon this, nor is it necessary to do so, I think it proper, having
regard to the manner in which each Party has conducted its case and the
importance attached to the issue, that I should express my views on it. For
I would not wish any silence on my part to admit of any reason for thinking
that the case for Sweden might have successfully rested upon the submissions
made by it under this heading.
The Swedish Government contended that ordre public or "public policy" is
reserved from the Convention, that the Swedish Child Welfare Law, 1924, as
amended, is a law of ordre public, that accordingly the "protective
upbringing" established by the Swedish authorities is not a breach of the
Convention of 1902. [p 121]
Consideration of this branch of the argument raises questions which may be
of not inconsiderable importance. Whilst we are concerned with a Convention
which relates to a conflict of laws within what may be referred to as the
field of private law, none the less it is in every sense an international
convention between sovereign States. Were support given to the Swedish
contention that such a reservation should be read into the Convention it
could provide a basis for arguments that similar reservations should be read
into other and quite dissimilar conventions and treaties.
The maxim pacta sunt servanda is of special significance in considering
this contention of the Government of Sweden. One should be constantly alert
lest anything that might be said�or, indeed, fail to be said�should give any
currency to a view that nations, under "public policy", may fashion their
own yardstick to determine their obligations under international treaties
or conventions (cf. Greco-Bulgarian Communities, P.C.I.J., Series B, No. 17,
p. 32).
Sweden's submissions as formally presented to the Court at the conclusion of
argument were as follows:
"That the rules pertaining to conflict of laws which form the subject-matter
of the 1902 Convention on the guardianship of infants do not affect the
right of the High Contracting Parties to impose upon the powers of foreign
guardians, as indeed of foreign parents, the restrictions called for by
their ordre public (public policy).
That these rules leave unaffected in particular the competence of the
administrative authorities reponsible for the public service of the
protection of children.
That the measure of protective upbringing taken in respect of Elisabeth Boll
cannot accordingly in any way have contravened the 1902 Convention relied
upon by the Netherlands."
The argument to substantiate these submissions was developed as follows. Two
premises were sought to be established.
The first was that the application of the personal law of a foreigner must
yield before those provisions of the lex fori which are within the domain of
ordre public (public policy), or at least of international ordre public.
The second was that the provisions of Swedish law relating to protective
upbringing in fact have that character.
It is to be noticed that the first premise advanced by Sweden does not state
that it is every law of the lex fori before which the personal law of the
foreigner must yield. It is only such laws as are within the domain of
public policy, or at least within the domain of international public policy.
Nor is it contended that every rule or law of public policy must have
priority over the personal law of children nationals of States signatories
to the Convention. It is only that part of ordre public (public policy) to
which the legislatures clearly attach such impor-[p 122]tance that, not
only do they make it applicable to foreigners upon their territory, but they
will not suffer the application of the foreign law. This part of public
policy (ordre public) is referred to as international ordre public or
private international ordre public.
I refrain from making any examination of these descriptive words, or any
determination whether they do or do not involve any definable concept of
law, or are merely indicative in a general sense of certain kinds of laws to
which others may attach different descriptive labels. It is important
however to understand the sense in which these terms are used by Sweden.
This the Swedish argument proceeded to indicate. A judgment of the Belgian
Cour de Cassation of 4th May, 1950 (Pas. 1950, 1. 624) was quoted as
follows:
"A law of domestic ordre public is only of private international ordre
public in so far as it was the intention of the legislature to lay down by
means of its provisions a principle which the legislature regards as
essential to moral, political or economic order and which, on that ground,
must necessarily, in its eyes, exclude the application, in Belgium, of any
rule to the contrary or any different rule in the personal law of the
foreigner."
So it was argued that public policy (ordre public) is applied to cases
where:
(a) the application of foreign law is prevented�the negative effect;
(b) the application of territorial law is made compulsory�the positive
effect.
Further, it was submitted that territorial measures which are made binding
in the public interest, so as to prevail over the foreign law, may in some
cases result in complete elimination of the foreign law, and the
substitution or enforcement of the lex fori; in others the application of
the foreign law may be only partially affected.
It is hardly necessary to refer to the many instances where, in accordance
with domestic law of a country, the Courts of that country have, apart from
obligations imposed by treaty, refused to recognize foreign laws or
judgments or rights arising out of foreign laws, on the grounds of ordre
public or public policy. Each nation does so to the extent to which it deems
its fundamental principles of public policy demand.
Public policy in every country is in a constant state of flux. It is always
evolving. It is impossible to ascertain any absolute criterion. It cannot be
determined within a formula. It is a conception. The varying legal
approaches made by the different domestic or municipal courts of different
countries in the cases on which they have been called to adjudicate, and the
wide differences of views on various and important aspects of public policy
(ordre public) [p 123] expressed by learned authorities are fairly evident.
The truth of the matter is whether ordre public (public policy) is based
upon considerations analogous to Article VI of the French Civil Code, or on
broad principles of moral or political or economic order, or on the
imperative nature of domestic laws, or on their territorial application to
all people within the State whether foreigners or nationals, or on
differences or supposed differences between positive and negative laws, or
whether they are public or private laws, administrative or
non-administrative laws, or ordre public as such or international ordre
public (or private international ordre public), etc.; decisions giving
effect to public policy within the municipal domain are based either upon
the specific terms of legislative law or upon a more or less elastic
conception of what public policy demands or permits in relation to the
particular case under consideration.
It is difficult to ascertain, if indeed that is possible, any common thread
or line of reasoning to bind all the different cases together, or to
harmonize them one with another, other than the general conception of public
policy as developed in each municipal system from law to law, from case to
case, and from time to time. Cases, no doubt, may be said to fall within
general principles or into wide and somewhat unspecific categories. It is,
for example, within one's knowledge that the domestic courts of the same
country may vary in their application of principles of public policy to new
and evolving sets of circumstances. Some are reluctant to assert any new
head of public policy or to extend existing principles to new sets of
circumstances. Others are not so reluctant.
Attempts have been made to discern some definable principle or principles to
explain or harmonize the different cases so decided in different countries,
and to elevate these principles to the level of rules of international law.
For myself, I am bound to say that I do not find them convincing. This is at
least understandable. In each country, however or in reliance upon what
domestic laws or general principles it may call in aid ordre public or
public policy, is determining for itself, by its legislation, by its
administrative agencies, or through its courts, the extent to which, if at
all, it will admit or exclude foreign laws, or foreign rights otherwise
applicable. It is, in each case, no doubt for good and sufficient reasons in
the view of the State concerned, an assertion of national sovereignty.
It is not, therefore, to be wondered that, in attempts to enunciate some
rules of guidance, laws described as of an absolute and imperative
character are divided into two categories (Savigny, English translation by
Guthrie, p. 78): those "enacted merely for the sake of persons who are the
possessors of rights", and those that are [p 124] not so enacted but rest on
moral grounds or on the public interest "where they relate to politics,
police or political economy".
We find Brocher describing these two categories as "Lois d'ordre public
interne" and "Lois d'ordre public international", respectively. This
distinction is presented for the purpose of indicating that laws within the
first category are applicable only where the internal law of the forum
applies, whilst the second imperatively demands application even in the
sphere of private international law of the country.
Niboyet has other ideas, and so has Bartin and so has Mancini. The many
authorities quoted during the course of the argument on both sides at least
should satisfy one, if that were necessary, that ordre public (public
policy) is but a general description of the operation by which nations
reject or refuse to accept foreign laws in the pursuance of, or presumed
pursuance of, its fundamental principles of "public policy" as understood
from time to time (see Dennis Lloyd, Public Policy: A Comparative Study on
English and French Law, 1953, and cf. Serbian Loans Case, P.C.I.J., Series
A, Nos. 20/21, p. 46).
But whatever may be the position in any municipal system at any given time,
once an international agreement or convention or treaty comes before this
Court, then the considerations which, in my opinion, are applicable to the
problem, are completely different.
The difficulties in applying public policy (ordre public) to treaties and
conventions were not underestimated by the Swedish Government. This appears
particularly in Sweden's Rejoinder to the Netherlands Reply. The latter had
advanced what are, in my opinion, powerful arguments against ordre public
being invoked against State conventions on conflict of laws. No useful
purpose can, I think, be served by referring to the learned authors quoted
by each side to support their respective submissions. On the one hand Sweden
claims that practically all authors on conflict of laws support their
contention that ordre public (public policy) can override� or is excepted
from�private law conventions, whilst the Netherlands contend the position
is the reverse. It seems to me that Sweden felt obliged in its Rejoinder to
meet the force of the observations of Wolff (Das internationale Privatrecht
Deutschlands, p. 70) and Melchior (Grundlagen, p. 359), quoted in the
Netherlands Reply. These observations are, in my opinion, of such persuasive
force that they should be quoted in full:
"Lewald rightly emphasizes the dangers that arise, once ordre public is
upheld in respect of State conventions. This would enable any State
practically to restrict the application of the convention [p 125] ad libitum
and, in such manner, to divest the convention of practically its entire
value." (Wolff, l. c.)
"In my opinion it should be held, in case of doubt, that within the realm of
State conventions on conflict of law, application of ordre public cannot be
allowed. Normally the States that are parties to the international
conventions will intend to create obligations of an equable and predictable
character. If, however, one admits exceptions by virtue of ordre public,
one must interfere considerably with the State convention, and this in a
manner that can hardly be foreseen on contracting, since ordre public is
less clearly defined than other conflict principles. And if one is to permit
the courts to apply ordre public within the realm of State conventions, one
must necessarily also approve such ulterior laws of a contracting State as
undermine the convention in the name of ordre public." (Melchior, l.c.)
Whilst not retreating from the position it had taken up in its
Counter-Memorial, Sweden in its Rejoinder presented its argument somewhat
differently and within limits which, no doubt, it thought were less
susceptible to attack. Having stated the issue as follows:
"The issue is whether the Swedish Government has been guilty of a breach of
the 1902 Convention in applying to a Dutch child its law relating to the
protection of children, in spite of the Dutch law relating to guardianship
which is recognized as being applicable to that child",
the Swedish case went on to say that the law for the protection of children,
being part of the public law, is applicable throughout the territory to any
foreign child there; that no national or foreign law can stand in the way of
its application, and that the 1902 Convention was in no way intended to
alter this situation.
Rules of public (or of administrative) law are, it was submitted by it,
absolutely mandatory.
It seems unnecessary to argue that if a domestic law has been validly passed
which, either expressly or by necessary implication, is made clearly to
apply, in terms obligatory upon the judicial and administrative organs of
that country, to all persons or things within the territorial limits of a
sovereign and independent State, the mandatory nature of the law upon all
persons, foreigners or nationals, within the territorial limits of the State
must, within its municipal system, be observed by those judicial and
administrative organs. Indeed, assuming the constitutionality and validity
of the Act within the domestic legal system of the State concerned, it is
competent for a State party to any treaty or convention to pass a law
binding on its own authorities to the effect that, notwithstanding anything
in the treaty or convention, certain provisions thereof [p 126] binding on
that State shall not apply, or to legislate in terms clearly inconsistent
with, and intending to override, the terms of an existing treaty (cf.
Sanchez v. United States, U.S. Supreme Court, Reports, Vol. 216, at p. 167).
Whether described as mandatory or otherwise, public or otherwise, that law
would have full force and effect within the territorial limits of the State
in question. But that in no way would be relevant to the question whether
that legislation�or an act done pursuant to it�is or is not in breach of or
incompatible with obligations binding upon the State by virtue of a treaty
or convention.
The argument of the Swedish Government on this aspect, as stated in its
Rejoinder and as applied to this case, may be stated thus:
(1) There is a distinction between public policy and public law as a
justification for the application of the lex fori.
(2) This is more than a difference in legal approach.
(3) Public policy may be relied upon as a ground for excluding foreign law
otherwise applicable and for applying the territorial law, by way of
exception.
(4) On the other hand, the obligatory rules of public law are normally and
mandatorily applicable to all those resident in the territory, regardless of
any foreign law whatsoever.
It is to be observed that Sweden's case is that, whereas "public policy" may
be invoked by way of exception, the obligatory rules of "public law" apply
to all resident in the territory regardless of any foreign law whatever,
whether arising under convention or treaty or otherwise; "public law" does
not even admit the principle of the applicability of the foreign law. But if
either "public policy" or "public law" may be invoked in respect of the
present Convention, it is, I think, clear�however the argument is
presented�that this may only be done on the basis of an implied reservation
from or exception to the Convention. In my opinion such a reservation should
not be implied in the absence of clear necessity that it must be so implied
in order to give effect to the intentions of the parties.
What is the character or definition of a "public law"? Opinions are varied.
There is no agreement.
In a wide sense, legislative laws are often conveniently categorized as
public or private, the former being of general application, directed to the
organization of society and applicable to all within the domain of the State
concerned, the latter rather directed to special interests of individuals,
etc., as distinct from society as a whole.
But "public law", in the context of the present dispute, needs to be more
definitively indicated. The Rejoinder of Sweden left me in [p 127] some
doubt as to whether the concept of "public law" was claimed: to be part of,
or separate from, that of "public policy". In Sweden's-final submissions
this is still somewhat unclear. But whether it is one or the other, it is
reasonably clear that "public law", as the term is used by Sweden, is a law
which by its terms applies to nationals and foreigners alike within the
territorial limits of a State, and which is made obligatory upon all persons
and upon all instrumentalities called upon to enforce it. It includes rules
of constitutional law, of procedure and of administrative law.
"Public law" is described, if not defined, by others sometimes in. similar,
sometimes in different, senses. To some it is synonymous with a "social
law". Others give it the specific role of providing for the political
structure of a State and include within it the Constitution of a country,
electoral laws, criminal laws and certain administrative and fiscal laws.
In this context the field occupied by "public law" is different from that
occupied by "public policy". The two are seen by some as separate concepts
whose domains may touch, but never overlap.
Others consider "public law" as a special branch of the law whose boundaries
are fairly precise and which may be defined "as the collection of
rules�legislative, departmental and Judge-made� which fix, or ought to fix,
the relation between the authorities and the different administrative
organizations or public authorities as well as with one another as with
individuals. It comprises, therefore, constitutional and administrative
law." (Droit public and ordre public, Transactions of Grotius Society, 1929,
Vol. 15, pp. 83 et seq.)
"Public law", so described, seems to me not only to overlap but to occupy a
substantial part of the area generally considered as-within that of "public
policy". It presumably would include a public law of the kind indicated by
Sweden, but it clearly enough includes very many others. I would think that
"public law" in the sense used by Sweden is either part of the concept of
"public policy" or, if a separate concept, occupies with it a substantial
area of the same field. It is not, however, for the purpose of this case
necessary in my opinion to determine this one way or the other. For, in
either case, in whatever words the argument is put, what the Court is being
asked to do is to read into the Convention a reservation�in other words, to
imply a clause or proviso�excepting from the terms and operation of the
Convention all laws of "public policy" and/or "public law". On this basis,
the arguments presented by Sweden on each stand or fall together, for that
on the one is, in my view, indistinguishable in principle from that on the
other. [p 128]
If, indeed, "public law" is to be considered as a concept separate and
distinct from "public policy" and in no way part of it, the argument for
Sweden is, in my judgment, clearly unsound (cf. Polish Nationals in Danzig,
P.C.I.J., Series A/B, No. 44, p. 24). For, irrespective of anything which
might appear in this (or any) Convention dealing with conflicts of laws, it
would be permissible and consistent with the Convention for some contracting
State to pass a "public law" of the character indicated by Sweden which
provided, notwithstanding anything to the contrary contained in any such
convention, that certain provisions of the "public law" should take effect.
Even suggested safeguards to keep the invocation of the reservation of
"public policy" within reasonable or governable limits could hardly find a
place where what is done under a reservation, exception or exclusion of
"public law" may be done "regardless of any foreign law whatsoever".
I cannot regard a proposition that could lead to such results as sound (cf.
Advisory Opinion concerning the Polish postal service in Danzig, P.C.I.J.,
Series B, No. 11, pp. 37 and 39).
Moreover, Sweden appears to have disregarded or paid insufficient attention
to the fact that measures which might be made the subject of "public" laws
in some countries are in others governed by the Civil Code.
I think the issue in this case would have been clearer had less attention
been directed to "ordre public" (public policy) and "public law", and more
to consideration of the subject-matter, purpose and scope and operation of
the Convention having regard to the terms in which it was drafted and agreed
to.
It is understandable however that the latter received less specific
attention than the former since the submissions in favour of a reservation
or exclusion of "public policy" or "public law" depend on considerations
which lie largely outside the terms of the Convention. Assuming such a
reservation or exclusion exists�which it was the aim of the Swedish case to
establish�the terms of the Convention in this particular case were, for the
purposes of the argument, of secondary importance. On the submissions of
Sweden, all that is necessary to be established is that the law under which
the disputed action is taken is one of "public policy" or of "public law";
that, in the absence of any allegation of denial of justice, concludes the
matter, whatever may be the terms of the Convention.
Public policy is principally and primarily a concept of municipal law. When,
however, an international obligation is involved upon which this Court is
called upon to pronounce, as in the present case, we are in a different
field altogether. Treaty and convention obligations, whatever they are,
must be faithfully observed. The provisions of municipal law cannot prevail
over those of a treaty or [p 129] convention (Greco-Bulgarian Communities,
P.C.I.J., Series B, No. 17, p. 32).
It should be repeated that what the Court is here being asked to do is to
read into, or in legal terms to imply, a reservation�in what precise terms
has never been made clear�excepting from the operation of the Convention all
laws of contracting States which fall within "public policy" or within
"public laws". The strongest of cases would have to be made out to justify
the Court in doing so, for to do so permits States to determine for
themselves the extent of their obligations under the Convention. It would
permit this to be done even in derogation of what otherwise are obligations
the Convention imposes. This could reduce the Convention to a shell. It is
difficult to imagine what value the Convention in those circumstances would
have, or why, having regard to the problem with which it sought to deal, it
was ever entered into.
Before the Court would be justified in implying a clause of reservation, it
would need to be quite satisfied that this was essential to be done in order
to preserve the intention of the Parties. For otherwise there would be
imposed a new and different agreement upon the contracting States.
No evidence was forthcoming that this was the intention. Reliance, however,
was placed upon a so-called principle that such a reservation or exclusion
must be read into conventions dealing with private law. Put in another way,
"public policy" operates retroactively, and even definitively acquired
rights cannot be invoked against such a Convention.
It was open to the Parties expressly to stipulate such a reservation.
Indeed in Sweden's case it was urged that a reservation of public policy is
expressly stipulated in almost all treaties and those that do not do so are
the exceptions. The Parties to the present Convention did not so stipulate.
It is not I think for the Court to speculate as to why they did not. The
minds of the drafters were clearly directed during the preparatory work to
the question whether some clause to that effect should or should not be
included. They deliberately refrained from including one. It would in my
opinion be going against all rules of construction as I understand them to
imply such a reservation now.
It is, I think, proper at this point to offer some general observations on
the exercise of having recourse to preparatory work in seeking the proper
interpretation to be accorded to treaties and conventions. Recourse to
preparatory work of treaties or conventions may, in certain cases, be
necessary. But whenever it is permissible it should, I think, be done with
caution and restraint. For there is always the danger that, instead of
interpreting the relevant treaty or [p 130] convention, one will find
oneself tending to interpret the preparatory work and then transferring
that interpretation across to the treaty or convention which is the sole
subject of interpretation.
The case before us presents, in my view, an example of this possibility.
Some find nothing in the preparatory work of any real value, one way or the
other. Others claim that it clearly supports the view that "public policy"
is excepted from the Convention. Others are equally satisfied that the
preparatory work just as clearly supports the opposite view. For my part, I
would think this somewhat unsafe ground upon which to base any reasoning.
Those who contend that such a reservation should be implied are obliged, I
think, to concede that�subject to any review by this Court�it is at the
discretion of States, applying within their territorial limits their own
ideas of public policy, to determine to what extent it will permit the
Convention to operate. It is suggested that a State invoking the reservation
is under some kind of duty to show that its public policy has been applied
reasonably�whatever this in the present context means�and in good faith.
The State should be ready to submit its actions to examination. In cases of
dispute it is further urged that the acts of the States are subject to
review by this Court provided it has jurisdiction. But what if the Court in
any given case has not jurisdiction? Moreover, if we are to determine, as we
must, the meaning of the Convention at the time it was entered into�1902�any
consideration that in event of dispute this Court would be available as a
reviewing tribunal, to mitigate the consequences of, or control the
unreasonable use by a contracting State of, the reservation, is irrelevant.
And what is to be the test or standard of reasonableness that is to be
applied? (Cf. Serbian Loans, P.C.I.J., Series A, Nos. 20/21, p. 46.)
Were such a reservation implied it would be a reservation of an indefinable
character and there would be little left in any legal sense of any
obligations under the Convention. For their content would be variable, quite
indefinite, quite unpredictable, depending on the will of different parties.
I find it difficult to understand legal obligations so undefined and
indefinite.
In my opinion, the submissions of Sweden on these issues are without
substance.
The views which I have earlier expressed on the proper interpretation of
the Convention reject any reservation, exception or exclusion of "public
policy" or "public law".
In this case�and the decision must, of course, be limited to this case in
its surrounding facts and circumstances�the result at which [p 131] I arrive
is the same as that reached by those who support such a reservation,
exception or exclusion.
But the grounds on which we reach our conclusion are, in my judgment, not
immaterial. They represent not mere methods of approach; they are
fundamentally different.
A reservation or exception of "public policy" would, in my judgment, set the
Convention at large. What is given by one hand may be taken away by the
other. Obligations clearly enough intended thereunder to be imposed upon all
contracting States would have no constant�if, indeed, any
predictable�meaning. Such obligations could never be defined or
ascertainable in terms reciprocally understood and binding on the parties.
The judgment of the Court, however, in which I have concurred, in my view
leaves the Convention unimpaired and intact. It preserves within the domain
of the administration of guardianship, to which its scope and operation is
limited, the full force and integrity of its provisions and of the
obligations thereunder undertaken by the Contracting Parties.
(Signed) Percy Spender.
[p 132]
DISSENTING OPINION OF JUDGE WINIARSKI
[Translation ]
To my great regret, I am unable to concur in the Judgment and I believe I
must state as briefly as possible the reasons for my dissent.
The Court is confronted with a specific and particularized case which I have
every reason to regard as exceptional. In order to ascertain whether the
Submissions of the applicant Party are well-founded in law, the Court must,
as it has always done, carefully scrutinize the facts which are at the
origin of, and characterize, the disputed situation; it must examine all the
facts in the case, including the national laws of the Parties and their
application, in order to decide whether these laws, as applied by the
national authorities, are or are not inconsistent with the international
obligations of the State.
The decision of the Swedish administrative authorities of April 26th, 1954,
is based on Article 22 (a) of the Swedish Law of 1924 on the protection of
children and young persons. Paragraphs (b), (c) and (d) contemplate much
more serious cases of juvenile delinquency and pre-delinquency. On the
other hand, paragraph (a) refers to the case of a "child under sixteen who,
in the family home, is ill-treated or exposed to serious neglect or any
other danger affecting its physical or mental health". Since the documents
in the case do not disclose ill-treatment or serious neglect in respect of
the infant, it follows that the only reason why the Child Welfare Board took
the infant in charge is constituted by "the danger affecting its physical or
mental health". Indeed, the same reason is to be found in the decision of
the Supreme Administrative Court of October 5th, 1954: "It is obvious that
the removal of the infant to a wholly new environment would at present
seriously endanger her mental health."
1. The administrative decision of April 26th, 1954, was taken during the
brief period of the Swedish guardianship organized on the application of the
father of the infant. It is common ground that the Swedish administrative
authorities acted correctly in applying the measure of protective upbringing
at the time to the infant; the same must be held with regard to the
maintenance of the measure during the confused period of transition when,
along with the Swedish guardianship, there existed the guardianship of the
father-guardian organized in the Netherlands.
But the situation changed entirely following two judicial decisions: on
August 5th, 1954, the Dutch Court of First Instance of Dordrecht released
the father from the guardianship, appointed a woman guardian and "orders the
said infant to be handed over to the said guardian"; on September 16th of
the same year, the Swe-[p 133]dish Court of First Instance of Norrkoping,
having regard to the Dordrecht judgment, "orders that the guardianship ...
shall cease to be regulated in conformity with Swedish law"; it thus made
way for guardianship within the meaning of the 1902 Convention.
From that time onwards, the position is clear: by the concurring judicial
decision of Dordrecht and Norrkoping, the second following the first, the
guardianship of the infant is governed by Dutch law in accordance with the
Convention.
2. Article 1 of the Convention should here be recalled:
"The guardianship of an infant shall be governed by the national law of the
infant",
as well as Article 6, paragraph 1:
"The administration of a guardianship extends to the person and to all the
property of the infant, wherever situated."
Paragraph 2 provides that this rule may admit of an exception in respect of
a certain type of immovable property; no exception, however, is provided
with regard to the person. No effort of interpretation could make these
clear provisions say what they do not say. The Convention was open only to
States represented at the Third Conference of Private International Law and
the members of this little family of nations who are bound by this
Convention have, with regard to guardianship, a very old common fund of
ideas and principles which was formulated in Roman law: Tutor non rebus
dumtaxat, sed et moribus pupilli praeponitur. And furthermore: Personae non
rei vel causae datur tutor.
It should also be noted that Article 6, paragraph 1, does not constitute a
rule regarding conflicts of laws. It contains a common substantive rule, in
accordance with the intention of the contracting States as expressed in the
preamble:
"Desiring to lay down common provisions to govern the guardianship of
infants."
3. The legality of the Dutch guardianship is not disputed by Sweden;
however, it is respected only as regards the administration of the property
and legal representation. On the other hand, the fact is�as has been
recognized by the Respondent�that the Dutch guardian is unable to obtain the
delivery of the infant to which she is undoubtedly entitled by virtue of
Dutch law which is binding on both Parties by virtue of the Convention; her
right is confronted by the Swedish administrative measure, taken and
maintained by an authority which, as has been said, holds "a portion of the
public power". The Respondent has recognized in its Counter-Memorial that
the measure taken at Norrkoping "constitutes an obstacle" to the exercise
of the right of custody by the regularly instituted guardian. The concurring
judicial decisions [p 134] of the two countries cannot be executed by reason
of the Swedish administration with regard to the essential question of
rights relating to the person : the right to custody, by virtue of which the
guardian may determine where she shall reside with the ward or may send her
elsewhere, and necessarily the right of education as well.
However, although the taking in charge of the infant for protective
upbringing was legitimate at the time when it was applied, its legality may
be challenged from the moment when: (i) the Swedish Court, informed of the
institution of the Dutch guardianship, recognized this guardianship as
regularly instituted and cancelled the Swedish guardianship, and (2) the
guardian asked for delivery of the infant.
It might possibly be argued that if the Swedish authorities had wished to
find a provision in the Convention to justify the measure taken, it could
have sought it in Article 7 which is in the following terms:
"Pending the institution of a guardianship, and in all cases of urgency,
measures required for the protection of the person and interests of a
foreign infant may be taken by the local authorities."
However, the Swedish Government has not relied on Article 7. Indeed, the
character of the measure as maintained for four and a half years excludes
any idea of urgency, even though protective upbringing could otherwise be
regarded as fulfilling the conditions laid down in Article 7.
4. Like the Court, I do not regard the Swedish administrative measure as a
rival guardianship constituting a direct and deliberate violation of the
Convention; I am however unable to regard it as constituting no more than a
certain temporary restriction on the exercise by the guardian of her
right�and duty�of custody and education. The measure encroaches deeply upon
the attributes of national guardianship which are guaranteed by the
Convention and in the circumstances of the present case, is not compatible
with the Convention.
The infant was nine years old when she was taken in charge by the Swedish
administrative authorities. As the Court is giving its decision in the
present case, she is thirteen and a half years old. The measure has
therefore already lasted four and a half years. There is nothing in the file
to indicate that the ending of the measure is in imminent contemplation by
the authorities which took it; the last decision in the matter, in which the
Supreme Administrative Court briefly found that the infant is still in need
of protective upbringing, is dated February 26th, 1956; it was therefore
taken two years and eight months ago. In other words, protective upbringing
is being applied to the infant at an age when the measure must necessarily
and irrevocably impart to the child a definitive [p 135] personal, family,
professional and national orientation. That is what constitutes the essence
of guardianship, the principal duty and right of the guardian.
5. I am unable to content myself with the finding that the Convention was
designed to settle conflicts of civil laws, that the case referred to the
Court is not a case of a conflict of laws, and that the measure maintained
by the Swedish authorities cannot therefore be regarded as incompatible with
Sweden's international obligations.
In the first place, I would recall what I have just said, that Article 6,
paragraph I, does not constitute a rule regarding conflicts of laws but
rather a common substantive rule. Furthermore, I find it difficult to agree
that the subject-matter of the Swedish Law is outside the subject of the
Convention and that, whatever the Swedish authorities may do in pursuance of
that Law, cannot in any way contravene the Convention; for the common factor
in the Law and the Convention is, in the final analysis, the infant. It
cannot be asserted at the very outset that since a law has a different aim
or purpose, it cannot be inconsistent with the Convention when, in fact, the
law paralyzes the effects of the Convention and renders its execution
impossible. I am not referring to cases in which a State, without violating
a treaty directly, holds it in check by indirect means of enacting or
utilizing laws and regulations which appear to have a different purpose but
which in practice make the provisions of a treaty inoperative. The Swedish
Law of Ï924 is no doubt not incompatible as such with the 1902 Convention;
but our case shows that the manner in which the law is applied in a specific
case may bring it into conflict with the Convention.
6. Of course the effect of the Convention cannot be to confer upon the
infant or the foreign guardian immunity from the whole of the local
legislation. Without referring to police and security laws, laws relating to
the entry and residence of foreigners, foreign exchange regulations, etc.,
which are not in any way related to guardianship and which extend
indiscriminately to all persons who find themselves, even briefly, in the
territory of the State, there is no doubt that certain legislative
provisions considered to be in the public interest in respect of infants may
be applicable to foreign infants residing in the country. Like the Court, I
agree that the Swedish Law of 1924 belongs to this category of laws. But the
conditions in which these laws are applied to foreign infants are-not a
matter of indifference and it is the application of these laws which makes
it possible to decide whether they are in conformity with the international
obligations of the State.
Some of the decisions of the Supreme Court of the Netherlands, which have
been cited in the proceedings emphasize one of these conditions which is
directly relevant to the case before this Court. Those decisions stress the
necessity of protecting society "whenever [p 136] children living within its
territory are endangered by the acts of the parents"; "the interest which
society has that children shall not grow up in Holland in such a way as to
be threatened with moral or physical harm." Vollmar carefully specifies and
repeats: children residing in the country, a situation which may arise here.
But it is one thing to apply the administrative measure as long as the
infant resides in the country for one reason or another, for example, the
will of the father or of the guardian; it is a different thing to retain the
infant in the country in order to maintain the measure. One example will
help to illustrate the problem.
Let us suppose that the law of the State of residence can overrule the lex
tutelae by making the infant subject to compulsory primary education until
an age that is greater than the one provided in his national law, i.e.
sixteen years instead of fourteen. The infant has just reached his
fourteenth birthday. If the guardian sought to return with his ward to his
national country because primary education there is not compulsory beyond
the age of fourteen and the ward could therefore begin to work, the local
authorities would certainly not be entitled to prevent the departure of the
infant in order to make him enjoy two further years of the compulsory
education already initiated; they could not legitimately prevent them from
changing their residence.
It is abundantly clear from the file that the Swedish administrative
authorities are not applying the measure of protective upbringing to the
infant because she has her residence in Sweden but that they are retaining
this foreigner in Sweden in order to subject her to protective upbringing.
This manner of applying the law must be held to be clearly incompatible with
the obligations assumed by Sweden under the Convention.
It appears to be likewise clear from the file that the measure in question
is not based upon the supposed insufficiency of the Dutch guardianship
(Article 22 a) in case the infant were handed over to her guardian, with
whom she already has her legal domicile. Indeed, Dutch guardianship,
functioning under the effective control of the national authorities, does
not provide fewer guarantees with regard to the protection of the interests
of the infant than Swedish protective education; the question of the
application of Swedish protective education by the Dutch authorities or vice
versa clearly does not arise. The Netherlands, moreover, possess legislation
on the protection of children and young persons that is generally similar to
that of Sweden.
7. It should be noted that in the Swedish judicial decisions concerning the
infant, the question of ordre public never arose. The Judgment of the Court
of Norrkoping which cancelled the regis-tration of the Swedish guardianship
and maintained the god man referred to the interests of the infant; the
Court of Appeal of Göta [p 137] which confirmed the decision of the Court of
First Instance considered the interests of the infant and reached its
decision "having regard, in particular, to the close links between Elisabeth
and Sweden". The Supreme Court, which removed the last traces of the Swedish
guardianship by releasing the god man from his duties, merely held that the
case could not be reduced to one of major necessity as the Court of First
Instance had considered.
The interest of the infant is the ratio legis, the purpose and the aim of
the legislative or treaty provision. The Swedish courts, which alone were
entitled to do so, have not applied the exception of ordre public. This
Court cannot substitute itself for a national court in order to decide what
is required by the ordre public of the country of that court.
In the Rejoinder, the Respondent partially modified its position and
contended that the Applicant wrongly referred to ordre public in the
specific meaning of the term in private international law.
"Nothing of the sort is involved in the present case... The Swedish case is
that the law for the protection of children, being part of the public law,
is applicable throughout the territory and to any foreign child there, that
no national or foreign law relating to the status of the child can stand in
the way of its application, and that the 1902 Convention was in no way
intended to alter this situation. The Government of the Netherlands has
clearly lost sight of this absolutely mandatory character of the rules of
public law, or of administrative law, which perhaps the Swedish Government
itself has failed sufficiently to stress."
In itself, the distinction is well taken. With regard to the contention, I
shall revert to it before I conclude.
8. Although the 1902 Convention regulates matters of private law, it is a
convention of public international law and like all international
conventions, creates rights and duties in respect of the States which
entered into it. The Convention is binding upon the States, of which the
courts and administrative authorities are the organs. By signing the
Convention, the contracting States could regard it as certain that the
decisions of their courts would be in conformity with the rules laid down by
the Convention and that execution of these decisions would be effectively
secured by the State of the courts concerned.
It is natural that the Government of the Netherlands should have adopted the
cause of its nationals for it thus defends its own right which is guaranteed
by the 1902 Convention and which has been disregarded by the Swedish
authorities.
By the Convention, the Netherlands have acquired the right that the
guardianship of infants shall be governed by the national law of the infant
and in particular that the right relating to the person, right of custody
and education should be treated inseparably from guardianship. The
Netherlands have acquired this right, [p 138] not vis-à-vis the Swedish
Courts but vis-à-vis the Swedish State which must prevent the manner in
which its national law is applied by its administrative organs from
rendering inoperative the decision which it has taken, in accordance with
the Convention, through its Courts. The decisions of the Courts were in
conformity with the Convention; in the event of the administrative
authorities hesitating between two possible manners of applying the law,
the State must prefer the manner which does not bring it into conflict with
its international obligations.
9. The solution which has my preference does not involve either an
interpretation or a criticism of the Swedish Law. In one of its first
judgments, the Permanent Court adopted an attitude in this connection from
which it never subsequently departed:
"The Court is certainly not called upon to interpret the Polish law as such;
but there is nothing to prevent the Court's giving judgment on the question
whether or not, in applying that law, Poland is acting in conformity with
its obligations towards Germany under the Convention." (Case concerning
certain German Interests in Polish Upper Silesia, Series A, No. 7, p. 19.)
With regard to the relationship between an international undertaking and
the municipal law, the Permanent Court expressed its view on several
occasions:
"It is a generally accepted principle of international law that in the
relations between Powers who are contracting parties to a treaty, the
provisions of municipal law cannot prevail over those of the treaty."
(Greco-Bulgarian Communities, Series B, No. 17, p. 32.)
And again:
"It is certain that France cannot rely on her own legislation to limit the
scope of her international obligations." (Free Zones, A/B, No. 46, p. 167.)
It has been argued before the Court that the Swedish Law is an enactment of
public law. In this connection, the Permanent Court has expressed the
following view:
"A State cannot adduce as against another State its Constitution with a view
to evading obligations incumbent upon it under international law or
treaties in force." (Treatment of Polish Nationals in Danzig, Series A/B,
No. 44, p. 24.)
The Constitution is a classic example of public law.
I therefore reach the conclusion that the Court ought to have adopted the
first Submission of the Government of the Netherlands.
The second Submission of the Government of the Netherlands merely
constitutes a legal consequence of the first Submission. The Government
which has created an irregular situation by its administrative measure is
under an obligation to end the measure.
(Signed) B. Winiarsky.
[p 139]
DISSENTING OPINION OF JUDGE CORDOVA
Much to my regret, I have to disagree with both the reasoning and the
conclusion reached by the Court in this case.
The judicial authorities of Sweden set up the guardianship of Marie
Elisabeth Boll, a minor living in Sweden but of Dutch nationality, on March
18th, 1954. This guardianship, according to Swedish law, only refers to the
administration of the interests of the infant, but does not include the
custody and control of her person. The same authorities put an end to this
guardianship on July 2nd, 1955, when the Supreme Court of Sweden discharged
finally the god man appointed by the inferior judicial authorities.
The Swedish administrative authorities, on April 26th, 1954, applying
Article 22 (a) of the Swedish Law for the Protection of Children and Young
Persons (Child Welfare Law) of June 6th, 1924, put Marie Elisabeth Boll
under the system called skyddsufpfostran, which, according to both Agencies,
should be translated into English as "protective upbringing", and as
"education protectrice" into French.
This protective measure�which the Swedish authorities still maintain after
four and a half years�according to the Swedish Law gives the custody and
control of the infant to the Swedish Infants' Bureau.
On their side, the judicial authorities in Holland, applying the Dutch laws,
set up the guardianship of the same infant, and on August 5th, 1954,
appointed Mrs. Catharina Postema as her guardian. According to Dutch law,
the guardian has the right, as well as the duty, to take custody and control
of the infant.
Neither the judicial authorities of Sweden which first set up and afterwards
terminated the guardianship, nor the administrative ones which instituted
the protective upbringing, in the whole of their proceedings, made the
slightest reference to the Convention governing the Guardianship of Infants,
signed by their country and Holland on June 12th, 1902, notwithstanding the
fact that this Convention was called to their attention (para. 5, Swedish
Counter-Memorial) .
In putting an end to their own guardianship, the Swedish authorities applied
their own law of 1904 (Counter-Memorial, Annex D a). They have, therefore,
recognized the Dutch guardian, Mrs. Catharina Postema, with full rights to
the administration of the infant's interests, but in fact made it impossible
for her to exercise her right of custody and control of the infant's person
on account of the infant being subject to the protective upbringing.
Counsel for Sweden tried to justify this disregard of the Convention�among
others of lesser importance with which I do not [p 140] consider it
necessary to deal here�on the main contention that the Convention of 1902
should not be considered as applicable, because the Swedish Law of
Protective Upbringing of 1924, being a public law and relating to the public
order of the State, may be applied to all infants, Swedish and foreign
alike, notwithstanding the provisions of the Convention.
The decision of the Court, although based on different grounds, reaches the
same conclusion that the Convention of 1902 is not applicable to the present
case.
Without rejecting expressly the ordre public theory relied upon by Sweden,
the Decision is predicated upon the theory that the Law for the Protection
of Children and Young Persons of 1924�under the authority of which the
"protective upbringing" was instituted and is still maintained�having a
different aim and scope than that of the Convention does not violate the
provisions of the latter, even though, in fact, it makes it impossible for
the Dutch guardian to fully exercise her rights and fulfil her duties as
derived from the Dutch laws and the Convention itself, in so far as it
denies her the custody and control of the person of Marie Elisabeth Boll.
The two theories, that of ordre public and public law and that of the
different aim and scope, have the same effect with regard to a Convention;
they both make it possible for the State, party to the Treaty, to avoid the
fulfilment of its obligations as prescribed in the international contract by
relying on its own laws. The theory upheld by the Court is nothing less than
the same theory of ordre public under a different guise; but perhaps still
more dangerous in its implications. It is true that the decision does not
require of the national law to be a public law or one related to public
order, but, as far as giving to a State signatory of a Convention the
possibility of infringing its provisions and its natural, logical and
expected legal consequences, it opens the door still wider than the theory
of ordre public to the possibility of raising the national laws as exception
against the binding force of treaties.
In my opinion there is no national law, whatever its classification might
be, either common or public or with different aim and scope, which in the
face of a treaty dealing with the same subject-matter can juridically claim
priority in its application. Laws of procedure, substantive criminal law,
political or fiscal legislation, passport regulations, and even laws related
to the sovereignty of a State over its own territory, are sometimes put
aside and suspended by treaty provisions and, what is more�in some cases�by
international law and by international courtesy alone, even in the absence
of any treaty stipulation. Such is the case of the regime of capitulations,
of diplomatic criminal immunities and fiscal exemptions, and of transfer of
territory by treaty provisions. In all these cases the stipulations of a
treaty or convention are binding upon the parties, notwithstanding the
public character of their affected national legislations. Therefore, in my
opinion, there is not much juridical [p 141] value in the proposition that
or Are -public, or a law with a scope and aim different from that of a
treaty, can, by themselves alone, be opposed to the application of a
convention or treaty, thus making negatory its intended juridical and
practical effects. It seems clear to me that the legislation of a State
party to a treaty dealing specifically with a subject-matter otherwise
normally regulated by its own laws has to yield before the provisions of
such treaty.
It has been said that treaties and conventions cannot be set up as a barrier
to the power to legislate in the future of a State party to such
international contract. The argument is not valid, because treaties and
conventions usually may be denounced, leaving the parties in complete
liberty to change again their legislative principles and laws; and, even
when, as in certain cases of transfer of territory, a treaty may not be
considered as subject to denunciation, this restriction upon the
legislative power which results for a State party to such treaty should be
deemed as a consequence agreed upon of its own will by such State. It has
also been argued that there is a well-known principle of interpretation of
treaties dealing with conflicts of national laws, the so-called Convention
of Private International Law, which gives to the parties to such treaties
the right to disregard its provisions relying on their own public laws or on
their laws relating to public order. I do not believe that there is such
principle of Public International Law�the only law between nations; on the
contrary, I have always known the time-honoured and basic principle of pacta
sunt servanda, which makes it impossible for the States to be released by
their own unilateral decision from their obligations according to a treaty
which they have signed.
The place to be given to the national laws of ordre public and to those with
a different scope and aim, whatever their classification might be, depends
upon the interpretation of the treaty; but when such interpretation clearly
includes within its provisions a subject-matter otherwise normally regulated
by those kinds of national laws, the provisions of the treaty should be
considered as having priority over them. To decide differently would mean
complete anarchy in the relations of States, would leave the binding force
of treaties in the unilateral hands of the legislative, judicial and
administrative authorities of the States parties to such treaties and,
finally, would completely destroy the indispensable hierarchy of the laws of
the States and that of the international legislation.
An international jurisdiction, in the interpretation of a treaty or
convention, must determine the extent of the consent of the parties to such
instrument. In so doing it must take into consideration the real will of
the signatory States as determined by the text of the treaty itself, by the
antecedents of the international contract, or by any other means at its
disposal. [p 142]
I agree with the Court in that the parties to the Convention of 1902 had
mainly in mind questions of the conflict of laws with regard to
guardianship; and also that they implicitly excluded generally all national
laws, either public or common, dealing with subject-matters different from
that of guardianship, like criminal laws, those organizing the judiciary and
the political structure of the government, passports, and even perhaps the
correction of delinquent infants. But I do believe that all matters
relating to the guardianship of infants, including all the legal as well as
practical effects of guardianship, such as the custody and control of
minors, measures relating to the protection and welfare of infants, should
be considered as falling within the terms of the Convention, although they
might be dealt with by national public laws, laws relating to the public
order of the State or by laws with a different aim and scope from that of
guardianship. The decision of the Court, although putting aside the theory
of or ire public, and basing its reasoning on the theory of the aim and
scope differing from that of the treaty, nevertheless tries to interpret the
Convention of 1902, stating that it was only intended to regulate the
conflicts of national legislations regarding guardianship, a subject-matter
alien and completely different from the protection of children and young
persons, which is the only aim and scope of the Swedish Law of June 6th,
1924. With this basic proposition, I cannot agree.
In my way of thinking, the 1924 Swedish Law�at least as far as its Article
22 (a) is concerned�is far from having an aim and scope different from that
of the Convention.
In substance, guardianship and the laws for the protection of children are
remarkably the same, and their means of realizing their purpose is
identical: the custody and control of the person of the minor. As far as the
intention of both is concerned, the guardianship dealt with in the
Convention and the "protective upbringing" have one and the same objective:
the protection of infants. Guardianship fulfils its purpose by giving the
custody and control of the child to the individual parent or guardian, and
only when this method of protection fails does this system of State
protection intervene by means of the "protective upbringing" and other
similar measures, taking away from the parent or guardian such custody and
control.
In spite of the Netherlands' own admission and Sweden's allegation to the
contrary, it is my understanding that Article 7 of the Convention clearly
comprehends the protective measures included in Article 22 (a) of the
Swedish Law of 1924, when it refers to the possibility of the local
authorities to take "in all cases of urgency" measures "required for the
protection of the person" of the infant. In order to prove the contrary, it
has been argued that the national laws of all parties to the Convention,
dealing with the protection of infants, were enacted a long time [p 143]
after the signing of the Convention, but that is not the case, at least with
regard to the two States before the Court, the Netherlands and Sweden. I
believe that the reference to protective measures included in Article 7 was
not accidental and meaningless. Its inclusion strongly suggests that the
necessity to introduce a provision making it possible for the States of
residence to apply measures of protection to the foreign infant, according
to their present or future legislations, in "cases of urgency", was clearly
present in the minds of the framers of the Convention. This is the natural
and, perhaps, the only reasonable interpretation of Article 7. Moreover,
although the Dutch law introducing the system of protection of infants was
enacted after the year 1902, such legislation was already contemplated and
prepared since 1901, and Sweden enacted its own law regarding protective
upbringing in the year 1902, which makes it evident that the Netherlands and
Sweden had already in mind the application of protective measures. It seems
to me that the framers of the 1902 Convention, seeking only the good of the
infants, although mainly referring to guardianship, tried to organize the
adequate application of the different protective methods of the signatory
States, guardianship as well as any other protective measures. They tried to
make compatible the institution of national guardianship with the local
protective legislations and measures by giving priority to the former
(Articles 1 and 6) over the latter (Article 7).
I hold the above view in spite of the position of both Parties to the
litigation before the Court which, as I have pointed out, believe that
Article 7 of the Convention is not applicable. If the 1902 Convention had
been a bilateral treaty, their common interpretation with regard to one of
its Articles�Article 7�would have been enough for me to consider such a
construction as final; but the 1902 Convention being a multilateral treaty,
it is possible, I believe, to hold a different opinion from that of the two
Parties before the Court with reference to the applicability of its
Articles.
Since according to the laws of the Netherlands, this right of custody and
control belongs to the guardian, there is sufficient legal reason to decide
that Catharina Postema, according to the Convention itself, may rightfully
claim the custody and control over Marie Elisabeth Boll, the basic principle
of the Convention being that guardianship shall be governed by the national
law of the infant (Articles 1, 2, 4 and 8 of the Convention). That is
undoubtedly the reason why the Netherlands Court of First Instance of
Dordrecht, August 5th, 1954, when appointing Madame Postema as guardian,
ordered at the same time that the girl should be handed over to her. But if
this were not enough, Article 6 of the Convention will take away the
slightest doubt when it says: "the administration of the guardian extends to
the person..." of the infant. [p 144]
Therefore, I feel safe in concluding that the Convention does regulate both
the right to custody and control and the protective measures in general,
including, of course, the protective measure called "protective upbringing"
referred to in Article 22 (a) of the Law for the Protection of Children and
Young Persons of June 6th, 1924. As a corollary it necessarily follows that
the Convention should have been applied by the Court, and the case of Marie
Elisabeth Boll should have been decided exclusively according to its terms.
The task of the Court should thus have been very much simplified, and its
decision should have been, in my opinion, the right one.
Even if the Swedish authorities, on April 26th, 1954, when they instituted
the "protective upbringing", did not know about the Dutch nationality of the
infant Boll, and even also if they did not take into account the terms of
the 1902 Convention, I believe that the protective measure taken by them to
put the Dutch girl under the regime of protective upbringing was a legal act
according to the terms of the Convention. Thinking their action urgent, as
the}' must necessarily have judged it, this measure is perfectly justified
in the light of Article 7 of the Convention, which makes it possible for the
local authorities to take, in "all urgent cases, the measures required for
the protection ... of a foreign infant...". Therefore, the setting up of the
protective measure does not constitute in itself a violation of the
Convention. I go as far as to believe that the Swedish authorities seem to
have been under a moral as well as a legal obligation to take such
protective measure judging from the meagre knowledge the Court has of the
real situation of the minor Boll.
It only remains to decide if, according also to the terms of the Convention,
the maintenance of such protective measure can be considered compatible to
the provisions of the Treaty of 1902. In my opinion this question should
have been answered in the negative. An urgency of four and a half years is
inconceivable, specially having, as I do, the understanding that the urgency
contemplated in Article 7 of the Convention requires two elements, one of
fact and the other a legal one. That is to say, a practical need of the
infant as well as the lack of an efficient protection, either because the
guardian has not yet been appointed or, if already appointed, does not or
cannot act efficiently.
The practical need may extend for an indefinite period of time, but, once
the aim of the Convention is fulfilled in the sense that the foreign infant
can be considered as sufficiently protected according to the laws of its own
nationality, the concept of urgency cannot any more apply; in the present
case, as soon as Madame Postema showed herself legally and practically able
to take charge of the infant Boll and to exercise her rights and duties as a
guardian according to the Dutch laws. I cannot understand the object of
Article 6 of the Convention in any other sense than to make obligatory for
the local authorities, should they be judicial or adminis-[p 145]
trative, to release the foreign child to the custody and control of the
guardian appointed in compliance with the national laws of the infant;
therefore, only in the case that the child Boll will remain in Sweden after
having been turned over to the Dutch guardian, and the future facts warrant
again the State intervention in favour of the child and against the legally
appointed guardian, shall the Swedish authorities be entitled�by their own
laws and entirely independent of the Convention with which they had already
complied�to set up a new "protective upbringing", but the provisional one
now in existence should be at once discontinued.
I refuse to accept the idea that the Convention is not applicable in this
case, and also the interpretation of the Swedish law of protective
upbringing, as giving right to the State of residence to keep a foreign
minor�in this case Marie Elisabeth Boll�indefinitely in its territory in
order to impose upon her its protection by means of denying the release of
the child to the legally appointed guardian �Madame Postema�which is the
logical, juridical, intended and expected effect of Article 6 of the
Convention.
The most strange effect of the law of protective upbringing, to keep a
foreign child within the country of residence against the expressed will of
the legally appointed foreign guardian, seems to me unwarranted and illegal
according to the general principles of international law, even in the
absence of a Convention as the one of 1902.
Such would be the case, for instance, of a so-called public law, or law of
ordre public which would impose forced labour in the fields upon infants,
native and foreign alike, in order to collect the needed crops for the
community. This law would certainly have an aim and scope completely
different from that of the Convention dealing with guardianship, but could
one say that the foreign guardian cannot avoid such forced labour being
imposed upon this foreign ward by taking him or her out of the country of
residence? Could the local law impede the taking out of the country of the
foreign infant because it is a public law or related to the public order, or
because it has a different aim and scope than that of the Convention?
I would reach the same conclusion, I believe, even in the absence of any
treaty or convention in the case of any national law different from the
penal ones, which would have the effect of denying the right to a foreigner,
adult or minor, to leave the country of residence.
From all that I have said, it is my considered opinion that the Second Final
Conclusion of the Dutch Government, which the Agent for the Netherlands
included in its Submissions of October 3rd last, that Sweden is under the
obligation to end the protective upbringing, should have been granted by the
Court.
(Signed) R. Cordova.
[p 146]
DISSENTING OPINION OF JUDGE "AD HOC" OFFERHAUS
[Translation]
I. In this case, which concerns the application of the Convention of 1902 on
guardianship, the question is one of an infant of Dutch nationality, born on
May 7th, 1945, in Sweden, the daughter of a father of Dutch nationality and
of a mother Swedish by birth, who had acquired Dutch nationality by her
marriage. The mother died on December 5th, 1953, and the father became, by
operation of law, guardian of the infant, in virtue of his national law
(Art. 378, B.W. Netherlands).
The Convention of 1902 governing the guardianship of infants is applicable
in this case because according to its Article 9 it applies to the
guardianship of infants nationals of one of the contracting States who have
their habitual place of residence in the territory of another of those
States.
The organization of the national guardianship in this case passed through
various phases before reaching its present state. A deputy-guardian, in the
person of M. Idema, was appointed only on June 2nd, 1954. Then, on August
5th, 1954, the Dordrecht Court relieved the father, Johannes Boll, of his
functions as guardian, and appointed instead Mme Catharina Trijntje
Postema, widow Idema, hereinafter called Mme Postema.
Meantime, in Sweden, the Swedish authorities had taken measures of
"protective upbringing" which at once made apparent a conflict with the
organization of the national guardianship. On May 5th, 1954, evidently not
yet being aware that Dutch nationals were involved, the Child Welfare Board
of Norrkoping approved the taking in charge of Marie Elisabeth Boll by its
President pursuant to Article 22(a) of the Swedish Law of June 6th, 1924, a
measure which was confirmed and therefore maintained in the proceedings of
June 22nd and October 5th, 1954, and again, on a fresh application,
maintained in the first and the last of the three decisions in 1955. After a
provisional phase, the child was entrusted to her maternal grandfather, M.
Lindwall.
The decision of June 22nd, 1954, to maintain the measure was taken in full
knowledge of the nationality of the parties and of the appointment of M.
Idema as deputy-guardian, and that of October 5th, 1954, in full knowledge
of the appointment of Mme Postema as guardian in place of the father.
Clearly, when the measure of protective upbringing was taken on May 5th,
1954, the Swedish authorities were unaware of the foreign nationality of the
infant� which was perhaps also due to the fact that, by mistake, Johannes
Boll had, on March 18th, 1954, had himself registered as guardian in Sweden,
that is to say as guardian in the limited sense of adminis-[p 147]trator of
the child's property, according to Swedish law, in addition to the custody
which Sweden allowed him according to Swedish law. This mistake, although
regrettable, in my opinion did not prejudice the father's rights. Moreover,
the father's Swedish guardianship was revoked on September 16th, 1954, and
the god man who had been appointed, was discharged on July 2nd, 1955. Only
the custody is in issue.
2. In the six decisions regarding protective upbringing, no mention was
made of an accusation brought against the father, except in the resolution
of the Government of the Province of Ostergotland of October 28th, 1955, the
allusion to a suspicion which existed at the time of the first taking in
charge by the Child Welfare Board. In all the decisions, even in the first
one, allusion is only made to a danger to the moral or mental health of the
child and, after the appointment of the female guardian, to the fear that
notwithstanding her powers, the child would remain under her father's
influence. Even this fear was based only on negative data, that is on the
lack of information regarding the circumstances in which guardianship was
being exercised in the Netherlands, and on the presumed ignorance of the
Dordrecht Court as to the reasons for the Swedish measures.
In the Swedish law of June 6th, 1924, on protective upbringing, Article 22
enumerates the cases in which such measures are permissible. The text of
Article 22 runs:
"In conformity with Articles 23-25, the Child Welfare Board will take
measures concerning:
(a) a child under sixteen who, in the family home, is ill-treated or exposed
to serious neglect or any other danger affecting its physical or mental
health;
(b) a child of the same age who, by reason of the immorality or negligence
of its parents or of their unsuitability for the duty of educator, is in
danger of becoming a delinquent;
(c) a child under eighteen whose delinquency is so serious that special
educational measures are required to correct it; and
(d) a person between eighteen and twenty-one who is found to be leading an
irregular, idle or immoral life or who exhibits other serious vices, the
correction of which calls for special measures on the part of society (law
of April 14th, 1944)."
Under Article 34, a non-delinquent child will, in the absence of special
circumstances, be placed in a suitable family.
The one case which, in the view of the Swedish authorities, arose in the
present instance was that mentioned in paragraph (a). There was no question
of the infant's being ill-treated or exposed to serious negligence, the
question was of a danger regarding her physical or moral health. Article 22
(a) requires that this danger should be one threatening her in the family
home. The Swedish authorities [p 148] based the measures which they took on
the existence of such a danger. This comes under the title of the Law which,
according to the French text, concerns "la protection des enfants et la
protection de la jeunesse" ["the protection of children and young people"].
It is certainly to be regretted that the Court only knows the decisions and
the facts which these bring to light. For whatever reason, neither
Government has given the Court more detailed information, and the mystery of
incomplete reports and statements has been maintained�marked in the
decisions by dots. One does not know whether the child is familiar with her
national language nor how she is getting on in the family where she is
placed. Following the exhaustion of the local remedies, and pending the
Judgment on the Application of the Netherlands Government, the pres-ent
situation has continued.
However, the Court had to decide whether at the moment of the institution of
the protective upbringing and of its maintenance, these measures were
compatible with the Convention, and, if not, whether they should be ended.
Therefore, in my view, one must adjudicate on the facts advanced by the
Parties which, however incomplete they may be, show that the protective
upbringing has only been instituted and maintained for reasons connected
with the moral or mental health of the infant. It is the right of the
Parties in the case to ask the Court to give its Judgment on these facts
alone.
3. Although in the Judgment of the Court the measure of protective
upbringing is considered as outside the scope of the Convention�an opinion
with which I cannot agree�the Court accepts that, in particular in the
decision of the Supreme Administrative Court of October 5th, 1954, the
capacity of the Dutch female guardian to concern herself with the person of
the infant was recognized. This is the starting point for the ensuing
considerations in which the Court holds that the protective upbringing
cannot be regarded as a rival guardianship to the guardianship instituted in
the Netherlands.
Next, it is said of the protective upbringing that it impedes the exercise
by the guardian of the full right to custody which is hers by Dutch law in
conformity with the Convention.
It may indeed be said that the whole dispute concerning the question whether
protective upbringing has an object other than the organization of the
guardianship presupposes the recognition of the Dutch guardianship.
None the less, I should have preferred a categorical declaration in which
the Court held that the guardianship of the parental guardian and that of
Mme Postema or at least the latter, constituted guardianship within the
meaning of the Convention. The Court would thereby have rejected the Swedish
Government's contention that Mme Postema's guardianship was based on the
puissance [p 149] paternelle of Johannes Boll and that it could not, for
that reason, be recognized. Furthermore, by such a formal declaration, the
Judgment would have interpreted the Convention in a strict and clear
fashion. However, in my view, the Judgment will none the less have the same
effects.
For the interpretation of the Convention in this sense, I attach great
importance to the indications to be found in the Acts of the Hague
Conferences of 1893, 1894 and 1900 which, in this respect, are more
important than the representatives of the two Governments have indicated.
In particular, it appears that the application of the national law of the
infant, as regards the reasons for guardianship, mentioned in Article 5, is
equally valid for Article 1. For example, if the death of one of the parents
deprives the infant of the care of both its parents, there is then a
"guardianship" in an "autonomous" sense acceptable for other countries.
4. If it be accepted that the guardianship of the two successive guardians
instituted in the Netherlands is wholly governed by the Dutch law of the
infant, this means in the first place that the national law is to be applied
in the contracting States as regards everything that concerns the exercise
of guardianship until that is finally terminated. In the Acts of the Second
Hague Conference of 1894 (p. 112, Report of the Fourth Commission), mention
is made of the difficulties which the application of a foreign law involves,
and the Commission therefore proposed to regulate the matter in such a way
that the competence of the courts and of the authorities and the law
applicable should coincide. The Commission clarified its point of view by
stating that the difficulties were already most embarrassing and that "those
involved in the organization of a complete juridical situation, in all its
phases and with all its complications, would be even more so". This same
expression "guardianship in all its phases" recurs in the commentary on
Article 1, also on page 112. Apparently, the aim was to regulate the whole
organization of guardianship, in conformity with the Preamble to the
Convention, which refers to "common provisions to govern guardianship".
In the second place, for the father-guardian or the mother-guardian, and
also as regards the non-parental guardian, guardianship within the meaning
of the Convention includes the custody of the person of the infant. This is
also recognized by the Court. If the content of the notion of "guardianship"
is determined by the national law, and if the national law includes custody,
the con-tracting States are bound to recognize this right of custody.
Moreover, in the original text of the Swedish law of July 8th, 1904, which
was intended to make possible the accession of Sweden to the Convention
(Rosters and Bellemans, p. 723), Article 5 of Chapter 4 regulates the
appointment of a delegate to look after the property and the person of the
infant (cf. also the present text in Annex D (a) of the Counter-Memorial).
[p 150]
Guardianship, within the meaning of the Convention, must therefore include
the national guardianship for the whole period of guardianship and for all
the care that the person of the infant requires, so to speak in extrinsic
and intrinsic totality. It follows that one may not say that the Convention
was only meant to regulate conflicts of laws. Above all, what is important
is to determine the scope of the provisions comprised in such a conflict.
Now, the scope of the Convention is fairly wide. Guardianship formed part of
a whole system of international conventions which was in contemplation at
The Hague, including the guardianship of adults, which became the Convention
concerning interdiction and similar measures of protection�as, in the 1893
programme, a convention was planned on puissance paternelle as well.
In the Acts of 1894 (pp. 111-112), the Fourth Commission expressed the view
that what was involved was protection through guardianship�the word
"protection" was used three times�and this is asserted in Article 6, which
provides that the administration of a guardianship extends to the person and
to all the property of the infant, and also in Article 7, which allows
measures for the protection of the person and interests of a foreign infant
to be taken by the local authorities.
As regards the extrinsic scope of guardianship, this institution could in no
way and nowhere exist or function without intervention and permanent
supervision by the courts or the administrative authorities, or both.
Literally, tutela means protection. The institution of guardianship does not
fall exclusively within the domain of private law. From the outset, the
public interest was involved and it is so at present in an even larger
measure, in all the contracting States.
The present regulation of Dutch guardianship includes the removal or
discharge of a guardian if he neglects his obligations (Art. 419, para. 1,
No. 2, Burgerlijk Wetboek)�the right of the Department of the Public
Prosecutor to entrust the infant to a Guardianship Council (Voogdijraad,
since 1955 Raad voor Kinder-bescherming) in case of the removal of the
guardian (Art. 421 a)� the discharge of the guardian at the request of the
Department of the Public Prosecutor or the Guardianship Council (Art. 423 j�
374 a, B.W.)�supervision by the deputy-guardian�various rights of the
Guardianship Council and the Children's Judge�guardianship exercised by
bodies, as ordered by the Court (Art. 396). There is always a competent
court in the Netherlands, by virtue of the requirement that the
deputy-guardian should reside within the territory, as well as a
Guardianship Council dealing with infants residing abroad (Art. 461 a).
Further, there are the provisions concerning the placing under supervision
of a child in danger of moral or physical harm which are applicable both in
the case of the exercise of parental power and also in that of the exercise
of guardianship (Arts. 365 to 373, recently [p 151] amended by the Law of
July 20th, 1955, j� 418 B.W.). A family guardian is appointed by the
Children's Judge. The latter may place the infant in an establishment or
elsewhere. The whole of this institution was described by the Applicant
Party as a measure for the assistance of the guardian in the matter of the
upbringing of the infant. The guardian may be removed by the Court should he
seriously neglect the directions of the family guardian or prevent the
application of measures for the placing of the infant (Art. 419, para. 1,
No. 7).
Ever since the entry into force of the codification of 1838, the surviving
father or mother has had the guardianship; there has been a deputy-guardian
(except in the irrelevant case of Art. 421 B.W.); the court has had the
right to remove the guardian; the guardian has had the duty of taking care
of the person of the infant and, if he had serious misgivings as to the
latter's conduct, the guardian could apply to the court for the detention of
the infant (Arts. 422, 423, 437, 441, 442, B.W., French translation by G.
Tripels, 1886). Thus there was already a system of protective rules which
have gradually been increased and improved.
Sweden, like other contracting States, was in a position to know of this
system of protection, as also of the draft law of February 6th, 1901, which
came into force on December 1st, 1905, by which the protection of children
was modernized.
In Sweden the first law on protective upbringing dates from 1902. The
consequences of all these laws must have been foreseen before Sweden
ratified the Convention in 1904�and afterwards the Convention was not
denounced.
In all the contracting States, legislation on the protection of children,
which in the beginning was little developed, has gradually progressed and,
as was mentioned in the Swedish arguments, national organizations are, in
conferences at Stockholm and elsewhere, still right up to the present
concerning themselves with measures to be taken in common agreement.
The question whether these rules are to be found in the Civil Code or in a
special law is, in this connection, quite formal and secondary. In the
Netherlands they are to be found in the Civil Code, both as regards
puissance paternelle and guardianship. In Sweden, where codification is of
another kind and where custody and guardianship are distinguished, they have
been dealt with separately, although in the 1949 law there are various
provisions whereby custody is entrusted to the guardian.
5. From these considerations I draw the conclusion that the Convention
governs the organization of guardianship in its totality, with the aim of
protecting children. In principle, it refers to the national law, but this
law gives way to the law of the place of residence, as far as may be
necessary. As an exception, if guardianship is not or cannot be set up in
accordance with Articles 1 and 2, [p 152] it is instituted and administered
in conformity with the law of the place of habitual residence of the infant
abroad (Art. 3). As an exception also, Article 7 provides that pending the
institution of a guardianship, and in all cases of urgency, measures
required for the protection of the person and interests of the infant may be
taken by the local authorities.
As soon as the nationality of the child became known to them, why did the
Swedish authorities not study the Convention and, in compliance with Article
8, inform the Dutch authorities of the situation "as soon as it was known
to them" ? According to the Swedish law of July 8th, 1904 (Chapt. 4, Art.
2), a letter to the Swedish Ministry of Foreign Affairs would have sufficed.
The Swedish authorities might have considered the application of Article 7
as a measure of urgency. But in their decisions there is no allusion to the
1902 Convention.
I do not share the view that in cases of urgency Article 7 only concerns
special or partial measures. Article 7 allows temporary measures of urgency,
even if they cover the whole intrinsic sphere of guardianship.
As to the decisions of the Dutch courts, the applicability of Article 7 has,
in my opinion, been affirmed by the Judgment of the Supreme Court (Hoge
Raad) of May 1st, 1958 (N.J. 1958, 432), concerning an infant of German
nationality, placed under temporary guardianship in virtue of Article 391
B.W. The Supreme Court added�obiter dictum, moreover�that, even in the case
of a well-founded fear of the interests of the infant being neglected (Art.
391, para. 2), the temporary guardianship should give way to the authority
appointed by the national law of the infant, that is to say, that it is for
that authority to judge whether, having regard to the child's interests, the
measures laid down in the national law of the country to which the child
belongs should be modified.
As to the question whether the measure of protective upbringing taken on May
5th, 1954, should, after the event, be described as urgent in the sense of
Article 7, I would reply in the affirmative. If there could be any
hesitation on this point, it would be for a reason of quite another kind: if
one admits that the Child Welfare Board was aware of the foreign nationality
of the child, it should have applied Article 8 of the Convention and should
then have taken action on the basis of the obligations laid upon it by this
Convention.
Article 7 cannot, after the event, be regarded as applicable to the decision
of the Government of the Province of Ostergotland of June 22nd, 1954, and to
the decisions which followed, because the nationality of the father and the
appointment of the deputy-guardian were then known. The Government of the
Province should have abstained from taking any such decisions and should
have left the child to the care of her guardian and the supervision [p 153]
of the deputy-guardian. After the change of guardian, moreover, it was only
the child's health which was regarded as a reason for the decisions. Hence,
the situation was thenceforward completely governed by the national law. In
the Swedish decisions there is to be found no reproach or fear as regards
the guardian Mme Postema, except the fear that the child would remain under
the influence of the father. Nothing in these decisions justifies any urgent
measure for the moral health of the child.
6. The second and the more important conclusion that I draw from a
comparison of the two systems, the Dutch and the Swedish, for the protection
of infants is the following: the provision of Article 22 (a) of the Swedish
Law of June 6th, 1924, and the measures taken in execution of this single
provision are of the same nature as those laid down in the Dutch law
applicable according to the Convention. Obviously, they are directed towards
the interest of the infant. The situation before the Child Welfare Board was
one for which the rules regarding Dutch guardianship would have offered a
similar solution. The care of the physical and moral health of the child, as
also for her intellectual and religious education, the choice of schools,
the selection of the place of residence for the child best adapted to her
interests, are in the hands of the person who has the child's custody under
the supervision of the authorities. Once the Convention is involved, it is
not the local law but the national law which prevails. In this case, the
application of Article 22 (a) has, in fact, in contravention of the
Convention, prevented the exercise of the guardian's rights and,
consequently, of the rights of the Dutch authorities.
Thus, it is not permissible to put children who are in a vulnerable
condition outside the scope of the Convention. How many children of the
present day are so vulnerable! It is a subject of anxiety for all parents.
It would be interesting to examine the percentage of such cases among
children under guardianship.
It should not be said that the removal of the infant constitutes a danger in
the sense of Article 22 (a). It is for the national guardian and for the
national authorities to see whether, in the circumstances, a removal is
possible or whether, temporarily, the child should stay in Sweden. As we
know, the guardian had already made arrangements in this sense.
For these reasons, I am of opinion that the application of Article 22 (a)
of the Swedish Law of June 6th, 1924, should, in this case, be judged
incompatible with the Convention, with the exception of the first taking in
charge of the child in so far as that falls under Article 7.
7. It follows from the foregoing that no obstacle can be placed in the way
of the application of the Convention of 1902, on the ground that the whole
subject of the Swedish law on protective [p 154] upbringing is outside the
scope of the Convention, because of the aim of this law to provide a social
guarantee.
In considering the object of the whole of this law, the different cases in
which it may be applied are no longer distinguished. The Swedish authorities
had in view only the protection of the infant against a danger concerning
her physical or moral health, and this in the family home. They applied
Article 22 (a) only.
If one views the four cases enumerated in Article 22 according to the same
criterion, there is a whole legislative sphere which is much larger than
that involved in the present case. Delictual and quasi-delictual situations
are included. There is a risk, therefore, of the social guarantee aspect
imposing itself imperatively in cases where the interest of the infant
prevails. For the same reason also there is reluctance to admit the
apparently unacceptable consequences of a Swedish law which has an
extraterritorial effect and which would have to be applied to Swedish
infants in a foreign country. But these consequences do not arise because
the Swedish law is confined to children "within a (Swedish) commune" and
because if the Convention was applied to such Swedish infants, this would
merely mean that the local authorities tolerate the handing over of such an
infant to the person who is in charge of him.
Without making any imputations as to the aims of the Swedish legislators, I
think that it might be an attractive policy to include in local legislation
rules governing a whole series of matters which, without such rules, would
be covered by the Convention, or to unite in one law provisions of a penal
and a civil nature, or to pass legislation covering the whole question of
the custody of children from the point of view of a social guarantee�and
this in opposition to the legislation of those States which, with a view to
the protection of children, have included provisions covering the same
matter in their Civil Code. Merely by means of the label affixed to a law,
the aim of the Convention could thus be defeated.
It is not, indeed, a question of another subject, but of another purpose in
the legislator's mind. In this connection, the English word "purpose" is
more indicative than the French word "objet". The subject-matter is the
legal relationship in question and the rules which are applicable to it. In
the present case, the legal relationship is constituted by the personal
situation of an infant who is not under the puissance paternelle or the
parental power of her two parents; the legal rules are the provisions
governing the custody of such an infant. This subject-matter is the same in
all States.
What is different is the purpose aimed at by the rules. Here the legislators
and the courts are guided by "pre-occupations of a moral and social order".
In fact, what is being done is to make an exception for the application of
public law enactments or the principles of inter-[p 155]national ordre
public, which thus come in again in disguise by the window after having been
chased out of the door.
The Applicant has rightly made an objection with regard to the category of
public law enactments. If indeed such a category exists, it has by its
absolute and static character a much wider scope than the exception based on
international ordre public, which is relativist and dynamic and which, in
any case, should be applied with great prudence. This exception does at
least allow an examination of the question whether, in a concrete case, the
points of attachment to the juridical system of the country of residence are
strong enough.
In the case of the Convention on guardianship, I would reject the general
exception based on international ordre public because in the Hague
Conventions which were drawn up at the Conferences of 1893, 1894 and 1900
the general formula of ordre public was deliberately rejected and the system
of individual treatment of special cases was adhered to�cases in which, for
reasons of public or social interest, a different conflict rule seemed
necessary. (Actes 1893, I, pp. 37-38, 41, 46-47, 74 et seq.; Actes 1894, pp.
15, 48, 118, 125 et seq.).
8. It cannot be denied that there are other subjects which are not included
in the Convention, such as puissance paternelle and the interdiction of
adults. It is a question of terminology and phrasing for the draftsmen of
conventions. The laws on compulsory education, vocational training and
health supervision, regulate other matters, but that does not mean that the
guardian of an infant of foreign nationality does not retain the right to
decide the residence of the infant and that he may not, by such decision,
put an end to the application of such laws. And if these laws had to be
complied with, the guardian would remain in personal contact with the infant
to look after his welfare. Everything here depends on the circumstances of
the case, and one must not generalize.
The distinguishing of the competence of administrative organs, to show the
powers of local tribunals, is not decisive. The designation as an
administrative or a judicial organ is often accidental or secondary. The
Swedish Government has described the decision of its Supreme Administrative
Court as a judicial one. In the Netherlands it is the Court which appoints
the guardian and directs the supervision of the guardianship.
Also, the application of the Convention does not lead to negative conflicts
of jurisdiction. Clearly, the measures of local supervision are not
enforceable in other States, but the institution of guardian-ship, as a
whole, as it is regulated by the national law, meets the needs. With regard
to the Dutch institutions, I would refer to the provisions enumerated above,
which include the measures to be taken by the courts, as well as the action
of the Guardianship [p 156] Council, the Amsterdam Council being competent
as regards every infant of Dutch nationality not residing in the Netherlands
(compare Arts. 460 to 461a, B.W.). These provisions apply in the case of a
Netherlands infant residing in Sweden or elsewhere. The guardian is
responsible for the care of the infant's health and well-being and he can be
removed or other measures can be applied should he fail to discharge his
obligations. The local authorities must respect this application of the
national law. Inversely, in the case of a Swedish infant who is in the
Netherlands or elsewhere, the local authorities are obliged to respect the
measures of guardianship ordered in Sweden. In the "juridical community"
between the contracting States, which has been invoked as far back as the
Acts of 1893, it is the rules of the national law which must be observed, in
conformity with that reciprocity which is at the basis of the Convention.
I conclude that only Article 22 (a) of the Swedish Law of June 6th, 1924, is
in issue and that the maintenance of the measures of protective upbringing
is not in conformity with the obligations binding upon Sweden by virtue of
the 1902 Convention.
(Signed) J. Offerhaus. |
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