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[p4]
[1] THE COURT,
composed as above,
gives the following opinion: [p5]
On May 22nd, 1931, the Council of the League of Nations adopted the
following Resolution:
"The Council,
Having regard to the letter of the High Commissioner of the League of
Nations in Danzig, dated March 31st, 1931,
Having regard to the contentions set out in the memorandum of the Polish
Government, annexed to the said letter,
Having regard to the contentions set out in the memorandum of the Danzig
Government, also annexed to the above-mentioned letter,
Requests the Permanent Court of International Justice to give an advisory
opinion, in conformity with Article 14 of the Covenant, on the two following
questions:
'(1) Is the question of the treatment of Polish nationals and other persons
of Polish origin or speech in the territory of the Free City of Danzig to be
decided solely by reference to Article 104 (5) of the Treaty of Versailles
and Article 33, paragraph 1, of the Convention of Paris (and any other
treaty provisions in force which may be applicable), or also by reference to
the Constitution of the Free City; and is the Polish Government accordingly
entitled to submit to the organs of the League of Nations, by the method
provided for in Article 103 of the Treaty of Versailles and Article 39 of
the Convention of Paris, disputes concerning the application to the
above-mentioned persons of the provisions of the Danzig Constitution and
other laws of Danzig?
(2) What is the exact interpretation of Article 104 (5) of the Treaty of
Versailles and of Article 33, paragraph 1, of the Convention of Paris, and,
if the reply to question (1) is in the affirmative, of the relevant
provisions of the Constitution of the Free City ?'
The Council requests the Governments of Poland and Danzig to hold themselves
at the disposal of the Court with a view to supplying it with all relevant
documents and explanations.
The Secretary-General is authorized to submit this request to the Court, to
give the requisite assistance in the examination of the question, and, if
necessary, to make arrangements to be represented before the Court." [p6]
[2] In pursuance of this Resolution, the Secretary-General, on May 23rd,
1931, transmitted to the Court a request for an advisory opinion in the
following terms:
"The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of May 22nd, 1931, and in virtue of
the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an
application requesting the Court, in accordance with Article 14 of the
Covenant, to give an advisory opinion to the Council on the questions which
are referred to the Court by the Resolution of May 22nd, 1931.
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of this matter, and will, if necessary,
arrange to be represented before the Court."
[3] The request was registered in the records of the Registry of the Court
on May 28th, 1931. To the request were appended:
(1) a copy of the report to the Council on the question of the treatment of
Polish nationals and other persons of Polish origin or speech in Danzig,
presented by the British representative, by which the above-mentioned
Resolution was submitted to the Council;
(2) a copy of a document circulated to the Council which contains: (a) the
letter from the High Commissioner to the Secretary-General, dated March
31st, 1931; (b) the memorandum from the Polish Government, and (c) the
memorandum from the Government of the Free City of Danzig, to which
reference is made in the above-mentioned Resolution.
[4] Under cover of a letter dated May 30th, 1931, the Secretary-General also
sent to the Registrar a copy of the minutes of the meeting of the Council on
May 22nd, 1931, when the Resolution above mentioned was discussed and
adopted.
[5] In conformity with Article 73, paragraph 1, sub-paragraph 1, of the
Rules of Court, the request was communicated to Members of the League of
Nations and to States entitled to appear before the Court. Furthermore, the
Registrar, by means of a special and direct communication, informed the
Governments of the Polish Republic and of the Free City of Danzig which were
regarded by the Court as likely, in accordance [p7] with Article 73,
paragraph 1, sub-paragraph 2, of the Rules, to be able to furnish
information on the question submitted to the Court for an advisory opinion,
that the Court was prepared to receive from them written statements and, if
they so desired, to hear oral arguments presented at a public hearing to be
held for the purpose; the representatives of the interested Governments had
already been consulted as to the length of the time-limits within which
these Governments would be ready to file any written statements they might
desire to submit.
[6] In these circumstances, and having due regard to the suggestions made by
the above-mentioned representatives and likewise to the fact that the
question submitted to the Court had, either in the course of the proceedings
before the High Commissioner, or in those before the Council, formed the
subject of three written statements submitted by each of the Governments
concerned [FN1], the President of the Court, by an Order made on June 1st,
1931, fixed September 17th, 1931, as the date by which a written statement
was to be filed with the Registry by each of the two Governments, and
October 15th, 1931, as the date by which they were to file a second
statement "in case the Court or its President should order or authorize its
submission, after September 17th, 1931". At the request of the Agent for the
Government of the Free City and with the consent of the Agent for the Polish
Government, these times were subsequently extended to October 1st and 29th,
1931, respectively. At the expiration of the first of these time-limits, as
thus extended, Memorials had been filed on behalf of the Danzig and Polish
Governments. On October 5th, 1931, the Agent for the Danzig Government
requested the Court to authorize the filing of a second written statement ;
the Court having granted this authorization, a "reply" by Danzig was filed
within the second time-limit fixed. The Agent for the Polish Government did
not present a second written statement.
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[FN1] See list in Annex
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[7] Lastly, on June 4th, 1931, the Registrar addressed to all States parties
to the Treaty of Versailles of June 28th, 1919, a communication drawing
their attention to the rights [p8] conferred upon them, in connection with
the question before the Court, by Article 73, paragraph 1, sub-paragraph 3,
of the Rules of Court.
[8] In the course of public sittings held on December 7th, 8th, 9th, 10th,
11th, 14th and 15th, 1931, the Court heard the oral arguments presented by
Professor Erich Kaufmann, Agent, on behalf of the Danzig Government, and by
MM. Moder�w, Agent, and Ch. de Visscher, Counsel, on behalf of the Polish
Government.
[9] In addition to the statements and observations of the interested
Governments and the documents transmitted by the Secretary-General, as
mentioned above, the Court has had before it a series of documents submitted
either during the written proceedings or at the hearing, by the
representatives of the two Governments [FN1].
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[FN1] See list in Annex
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[10] The Court held that the question submitted to it for an advisory
opinion related to an existing dispute between the Free City of Danzig and
Poland, within the meaning of Article 71, paragraph 2, of the Rules of
Court. As one only of these States, namely, Poland, had on the Bench a judge
of its nationality, the Senate of the Free City of Danzig availed itself of
its right, under Article 71 of the Rules of Court, to choose a judge ad hoc
to sit in the case.
[11] The submission of the case being in all respect regular, it is in these
circumstances that the Court is now called upon to give its opinion.
* * *
[12] The immediate origin of the questions on which the Court is called upon
to give its opinion is to be found in a matter recently submitted for
decision by Poland to the High Com-missioner of the League of Nations at
Danzig.
[13] The diplomatic representative of the Polish Republic at Danzig had
written to the High Commissioner on September 30th, 1930, requesting his
decision, in accordance with Article 39 of the Paris Convention, "in regard
to the unfavourable treatment of Polish nationals and other persons of
Polish [p9] origin or speech in the territory of the Free City of Danzig".
At the same time the diplomatic representative has submitted a series of
conclusions, together with an explanatory memorandum, relating to the
following points: public and private education ; recognition of school
certificates; freedom to use the Polish language; nationality; paid labour;
acquisition of landed property; allotment of dwellings; police registration;
liberty of domicile and establishment.
[14] In his explanatory memorandum, the diplomatic representative had
declared that it had become clear that "the position of the Polish
population", as established by Article 104 of the Treaty of Versailles and
Article 33 of the Convention of Paris, was in danger. The Polish Government
had therefore felt obliged to solicit a decision by the High Commissioner,
and to intervene, "not only on legal grounds but also for humanitarian
reasons, in order to protect the interests of the Polish nationals and the
Polish population residing in the territory of the Free City".
[15] The Polish request of September 30th, 1930, gave rise to written
proceedings dealing in detail with the points in dispute. On December 3rd,
1930, the Free City of Danzig submitted a "reply" to the Polish allegations
and claims; on January 29th Poland replied, Danzig making a rejoinder on
March 25th and May 5th, 1931, in a "second reply".
[16] Meanwhile, the High Commissioner had written to the Parties, under date
March nth, 1931, inviting them to furnish him with memorials, setting forth
the legal arguments on which they respectively relied in their
interpretations of Article 104 :' 5 of the Treaty of Versailles and Article
33 of the Convention of Paris. These memorials were sent to him on March
26th, 1931; and on March 31st following he wrote to the Secretary-General of
the League of Nations, transmitting them and adding that "it would serve no
useful purpose to examine the numerous concrete points submitted to the High
Commissioner for decision in the request of the [p10] Polish Government of
September 30th before the legal points involved have been settled beyond
dispute". Accordingly, with the agreement of the Parties, he drew the
Council's attention to "the eminent desirability of asking the Permanent
Court of International Justice to give forthwith an advisory opinion on the
legal points on which the two Governments differ".
[17] The High Commissioner's suggestion came before the Council on May 22nd,
1931. Mr. Henderson, the Rapporteur, endorsed the opinion expressed by the
High Commissioner, and submitted to the Council, by which it was adopted,
the resolution appearing at the beginning of the present Opinion.
[18] In his report Mr. Henderson recapitulated the Polish arguments and
cited the submissions of the Polish memorandum of March 26th, 1931, namely:
"1. The Free City of Danzig is prohibited by paragraph 5 of Article 104 of
the Treaty of Versailles, by the second clause of paragraph 1 of Article 33
of the Treaty of Paris, and by the Constitution of the Free City, from
making any discrimination in administration and legislation between the
German majority, on the one hand, and Danzig citizens of Polish origin, or
Polish citizens or other persons of Polish origin and speech, on the other
hand. This means in particular that:
(a) Polish citizens in Danzig, in accordance with the Danzig Constitution,
enjoy full and entire equality of rights in every domain of public life and
of private law relations, and, in particular, by Article 4 of the said
Constitution, their national development and, above all, the use of the
mother-tongue in education, in internal administration and in the
administration of justice are guaranteed to them;
(b) Polish citizens enjoy full and entire equality of rights except
political rights. In particular, the Free City of Danzig is bound to
guarantee to them their free national development and especially the use of
the mother-tongue in education, internal administration and the
administration of justice, on the same footing as Danzig citizens;
(c) All other persons of Polish origin and speech enjoy the same rights as
Polish citizens. [p11]
2. It is for Poland to submit to the organs of the League of Nations, by the
method provided for in Article 103 of the Treaty of Versailles and Article
39 of the Treaty of Paris, any dispute arising out of the execution of
paragraph 5 of Article 104 of the Treaty of Versailles and Article 33 of the
Treaty of Paris; in particular, Poland has the right to submit to the organs
of the League of Nations disputes concerning the observance of the Danzig
Constitution and the application of the laws of Danzig in regard to Poles
who are Danzig citizens."
[19] The Danzig arguments were summarized by the Rapporteur in the following
terms:
"Article 33 of the Paris Treaty of November 9th, 1920, forms the sole legal
foundation for the settlement of the minorities problem between the Free
City of Danzig and the Republic of Poland.
Article 33 of that Treaty, in accordance with the spirit and letter of the
Treaty of Versailles, fulfils and takes the place of Article 104, paragraph
5, of the Treaty of Versailles.
Under Article 33, paragraph 1, of the Paris Treaty, Danzig is bound to apply
to the Polish minorities treatment which does not involve any discrimination
as compared with the other minorities, so that the members of the Polish
minority possessing Danzig nationality must be treated in accordance with
provisions similar to those which Poland applies in Polish territory in
execution of Articles 7, 8 and 9 of the Polish Minorities Treaty, while the
members of the Polish minority not in possession of Danzig nationality must
be treated according to provisions similar to those which Poland applies in
Polish territory in execution of Article 2 of the Polish Minorities Treaty."
***
[20] Before entering upon an examination of the questions on which the
opinion of the Court is requested, it is desirable to recapitulate the main
facts regarding the origin and the evolution of the Constitution of the Free
City of Danzig and of Article 33 of the Convention concluded between Poland
and Danzig on November 9th, 1920, commonly known as the Convention of Paris,
for, in certain of its aspects, these facts have a direct bearing on the
present case. [p12]
[21] Article 103 of the Treaty of Versailles lays down that:
"A Constitution for the Free City of Danzig shall be drawn up by the duly
appointed representatives of the Free City in agreement with a High
Commissioner to be appointed by the League of Nations. This Constitution
shall be placed under the guarantee of the League of Nations."
[22] On February 13th, 1920, the Council of the League of Nations approved a
memorandum concerning the duties of the High Commissioner of the League at
Danzig, whom it had just appointed. This memorandum provided that the High
Commissioner should submit the Constitution of the Free City to the Council
before it was formally approved.
[23] The Constitution was drawn up by a Constituent Assembly, which adopted
it on August nth, 1920. It was submitted to the Council, in draft form, on
August 24th through the High Commissioner. The Council did not however make
any detailed examination of it till November 1920. After considering a
report submitted by Viscount Ishii dealing in the first place with the
definition of the "exact meaning of the terms 'protection' by the League and
'guarantee' of the Constitution by the League", which are employed in
Article 103 of the Treaty of Versailles, the Council decided, on November
17th, inter alia, that the Constitution of the Free City should be placed
under the guarantee of the League of Nations, "with effect from the time of
its establishment by the Principal Allied and Associated Powers", but that
the "Constituent Assembly" of Danzig should be invited to submit, within
three weeks, the final text of the Constitution, revised in accordance with
various changes indicated by the Council.
[24] It should in this connection be observed that the "Decision
constituting the City of Danzig as a Free City", which was signed on behalf
of the Principal Powers on October 27th, and on behalf of Danzig on November
9th, 1920, provides that it "shall take effect as from November 15th, 1920";
and on that date the High Commissioner's deputy formally pro-claimed the
establishment of Danzig and the adjacent territory as a "Free City". [p13]
[25] On January 12th, 1922, the Council authorized the High Commissioner to
approve the Constitution as soon as certain specified conditions had been
complied with by the Free City. Accordingly, by a letter dated May nth,
1922, the High Commissioner declared that he approved the Constitution, as
successively amended at the invitation of the Council of the League of
Nations'. On May 13th, 1922, the Council approved a report from the High
Commissioner recording this event, and took note, at the same time, of his
decision accepting the Constitution of the Free City of Danzig in conformity
with Article 103 of the Treaty of Versailles.
* * *
[26] Article 104 of the Treaty of Versailles provided that:
"The Principal Allied and Associated Powers undertake to negotiate a treaty
between the Polish Government and the Free City of Danzig, which shall come
into force at the same time as the establishment of the said Free City, with
the following objects:
���������������������������������������
5� to provide against any discrimination within the Free City of Danzig to
the detriment of citizens of Poland and other persons of Polish origin or
speech."
[27] The work of drawing up the convention provided for in Article 104 of
the Treaty of Versailles had been initiated on May 7th, 1920, when the
Conference of Ambassadors adopted a resolution to the effect that it was
desirable that the said convention should be concluded as early as possible,
and inviting Poland and Danzig to continue and to complete in a short time
the necessary preparatory discussions under the chairmanship of the
representative of the Allies. On July nth, 1920, the Supreme Council had
approved a "Decision concerning Danzig" to the same effect.
[28] To this end, preliminary drafts had been prepared both by Poland and
Danzig, and had been the subject of an initial exchange of views at Paris in
September 1920, after which a second preliminary draft, dated September
20th, had been submitted by the Polish representatives. The first Polish
draft [p14] contained a Chapter II (nine articles), dealing with "Public
Rights", and a Chapter III (six articles), dealing with "Public Education" ;
these chapters regulated, in detail, both the situation of minorities in the
Free City and the rights of Polish nationals at Danzig. The Danzig
preliminary draft contained an Article VIII (fourteen paragraphs), dealing
with the "Rights of nationals of both the contracting Parties" (Rechte der
beiderseitigen Staatsangeh�rigen); on the other hand, with regard to "the
minority rights of Danzig nationals of Polish origin or speech", the article
referred to the terms of the Constitution. The second Polish preliminary
draft presented the same features as the first, in regard to the point in
question, viz.: the detailed regulation (two chapters and eighteen articles)
of the rights of minorities, and in particular of Polish nationals at
Danzig.
[29] The communications between the Conference of Ambassadors and the Polish
delegation] have not been submitted to the Court, but it is an established
fact that on October 16th, 1920, the Conference transmitted to the Danzig
delegation the text of a "Draft Convention between Poland and the Free City
of Danzig provided for in Article 104' of the Treaty of Versailles", with a
request for that delegation's observations upon it. In this text, the
matters dealt with in the detailed provisions of the preliminary drafts
concerning the rights of foreigners were settled by an Article 30, worded as
follows:
"The Free City of Danzig undertakes to apply to racial, religious and
linguistic minorities provisions identical with those which are applied by
Poland on Polish territory, in execution of Chapter I of the Treaty
concluded at Versailles on June 28th, 1919, between Poland and the Principal
Allied and Associated Powers, with a view, in particular, to ensuring the
application of the provisions laid down in Article 104, paragraph 5, of the
Treaty of Versailles with Germany [FN1]."
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[FN1] Translation communicated by the Danzig Government
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[30] The Danzig observations (dated October 18th) upon the draft of October
16th, 1920, were not specially concerned with Article 30 of the draft.
[31] On October 20th, the Conference of Ambassadors sent to the Danzig
delegation a revised text of the draft convention, in which Article 30
reappeared, without any change; this text of the convention was described as
"definitive", and the covering [p15] letter added that "the Conference could
not agree to make any further alterations in this document" ; the convention
must be signed on October 23rd following. It should be observed that a note
"concerning the draft Constitution .... from the point of view of the Treaty
of Versailles" accompanying the letter of October 20th, 1920, under cover of
which the Conference transmitted to the Council of the League of Nations, at
the latter's request, the "definitive text" of the convention for
consideration during its session at Brussels, contained the following
passage, the import of which is examined below:
".... It is well known that the Treaty [of Versailles] provides for the
conclusion of a convention between Danzig and Poland which is to ensure for
Poland in regard to Danzig certain .... guarantees regarding treatment
(equality of treatment)."
[32] The Polish delegation refused to accept the draft of October 20th ; the
Danzig delegation, on the other hand, had decided to sign it. In these
circumstances, the two delegations were invited to undertake further
negotiations; the Danzig delegation however declined to do so, pointing out
that, according to the covering letter of October 20th, the text of the
draft bearing that date was definitive and could not be further altered.
Thereupon the Conference of Ambassadors assured the Danzig delegation, in a
letter dated October 28th, 1920, that the Conference of Ambassadors had
never intended to call in question "the essential solutions" embodied in the
draft treaty sent to the delegation under cover of its letter of October
20th, 1920.
[33] As a result, some unofficial conversations took place. As appears from
a letter written on November 5th, 1920, by the President of the Danzig
delegation to the President of the Conference of Ambassadors, these
negotiations resulted in some draft amendments to the original text. One of
the pro-posed amendments, however, affected the former Article 30, which the
Polish delegation desired to modify, so as to read as follows:
".... and to provide, in particular, against any discrimination in
legislation or in the conduct of the administration to the detriment of
nationals of Poland and other persons of Polish origin or speech [FN1]".
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[FN1] Translation communicated by the Secretariat of the League of Nations.
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[34] [p16] The Danzig delegation thereupon asked for confirmation of their
view that this amendment did not ipso facto invest Polish nationals with
political rights, such rights appertaining solely to nationals of the Free
City. The required confirmation was given in a letter dated November 6th;
whereupon the Convention was signed on November 9th, 1920.
[35] Article 33 of the Convention, which corresponds to Article 30 of the
drafts of October 16th and October 20th, is worded as follows:
"The Free City of Danzig undertakes to apply to racial, religious and
linguistic minorities provisions similar to those which are applied by
Poland on Polish territory in execution of Chapter I of the Treaty concluded
at Versailles on June 28th, 1919, between Poland and the Principal Allied
and Associated Powers, to provide, in particular, against any
discrimination, in legislation or in the conduct of the administration, to
the detriment of nationals of Poland and other persons of Polish origin or
speech, in accordance with Article 104, paragraph 5, of the Treaty of
Versailles.
The provisions of Articles 14 to 19 of the Treaty concluded at Versailles
between the Principal Allied and Associated Powers and Poland on June 28th,
1919, as also the provisions of Article 89 of the Treaty of Versailles with
Germany, shall equally apply to the Free City of Danzig."
[36] It should be recalled that Viscount Ishii's report, which was presented
to the Council of the League of Nations on November 17th, 1920, and has
already been referred to, contains the following comment on the above
article:
"According to Article 33, the Free City undertakes to give protection to
minorities of race, religion and language, in accordance with the
stipulations contained in the Treaty of June 28th, 1919, concluded between
Poland and the Principal Allied and Associated Powers ; these stipulations
have already been placed under the guarantee of the League by a Resolution
of the Council dated February 13th, 1920."
[37] Viscount Ishii, after pointing out that the text submitted to the
Council at Brussels, in October 1920, had since been somewhat modified, went
on to state, in his report, that [p17]
"nevertheless the final text does not differ in any vital point, or in any
point of interest to the League, from the draft report submitted to the
Council at Brussels".
[38] This was the draft containing the text of Article 30 quoted above.
[39] Article 38 of the Convention of November 9th, 1920, between Poland and
Danzig lays down that
"further agreements shall be concluded between Poland and the Free City on
all questions not dealt with in the present Treaty".
[40] In pursuance of this clause, an agreement between Poland and the Free
City was concluded at Warsaw on October 24th, 1921. The first section (Art.1
to 44) of that agreement, which was followed at a later date by a number of
supplementary agreements, deals with "Polish and Danzig nationals" and
regulates such questions as: conditions for naturalization at Danzig,
frontier traffic, permission to engage in commerce and industry, acquisition
and disposal of movable and immovable property. On the other hand, the
"Final Provisions" include an article, No. 229, which deals with
"Reservations arising out of Article 33 of the Convention" (of Paris), and
lays down that:
"Whereas the Polish Republic, relying on the provisions of Article 104,
point 5, of the Treaty of Peace, and Article 33, paragraph 1, of the
Polish-Danzig Convention of November 9th, 1920, claims more extensive rights
than those provided in the present Agreement, and whereas the Free City of
Danzig does not acknowledge these rights, the Polish Republic expressly
reserves these more extensive rights, particularly in regard to the extent
of the minority rights of Polish nationals in the Free City of Danzig, and
in regard to prohibition of residence [FN1]."
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[FN1] Translation by the Registry.
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[41] The situation resulting from this article subsequently gave rise to a
number of practical difficulties.
[42] Thus, for example, in July 1923, the Council of the League of Nations
was called on to consider a declaration by the Polish representative
dealing, inter alia, with the interpretation of the clause provided for "in
the Treaty of Versailles and [p18] later on in the Convention of Paris" to
the effect that "no discrimination shall be made in the Free City to the
detriment of Polish nationals and other persons of Polish origin or speech".
The Council was content, in regard to this point, at its meeting on July
7th, 1923, to recommend that "Poland and Danzig should bring before the High
Commissioner without delay any legitimate grievance which either may
consider it has against the other", a recommendation which the Council took
occasion, on March 13th, 1925, to confirm and emphasize.
[43] In pursuance of the decisions adopted on July 7th, 1923, the High
Commissioner transmitted to the Council, under cover of a letter dated
August 31st, 1923, a "Declaration" setting forth the results of the
negotiations which had taken place between the Parties under his
chairmanship. One chapter of this declaration: is devoted to Article 33 of
the Convention of Paris. It contains the following passage:
"Both Parties state that the interpretation by each Party of Article 33 is
so widely divergent that there appears to be no possibility of reconciling
their different points of view on this fundamental question, which will
therefore have to be answered by means other than an agreement between the
two Governments. In the meantime, certain disputes arising out of this
difference of opinion as to the meaning of the paragraph are in need of
settlement as a provisional measure without prejudice to the final decision
on the point at issue."
[44] In his covering letter, transmitting the above declaration, the High
Commissioner added, for his own part, that:
"The only question on which it has not been possible to arrive at an
agreement is one of vital importance to both Parties. It is the question of
the legal status of Polish citizens in the territory of the Free City, which
is dealt with in paragraph 33 of the Treaty of Paris and the respective
paragraph of the Treaty of Versailles.... The matter turns upon two
different and perfectly bona fide interpretations of certain paragraphs in
the Treaties, on which there will, I think, be required an opinion or a
decision of some judicial authority."
[45] The Resolution adopted by the Council, on September 1st, 1923,
concerning the High Commissioner's report, does not, [p19] however, mention
the question of Article 33 of the Convention of Paris; and when, in
1924-1925, the Соuncil had once more to consider a number of questions
arising out of that article, it again refrained from giving any decision on
the merits, and confined itself to adopting, on June nth, 1925, a Resolution
concerning the procedure before the High Commissioner. It is in these
circumstances that the problem is now referred to the Court in order that
the questions of principle involved may receive a solution.
* * *
[46] The two questions submitted to the Court are as follows:
"(1) Is the question of the treatment of Polish nationals and other persons
of Polish origin or speech in the territory of the Free City of Danzig to be
decided solely by reference to Article 104 (5) of the Treaty of Versailles
and Article 33, paragraph 1, of the Convention of Paris (and any other
treaty provisions in force which may be applicable), or also by reference to
the Constitution of the Free City ; and is the Polish Government accordingly
entitled to submit to the organs of the League of Nations, by the method
provided for in Article 103 of the Treaty of Versailles and Article 39 of
the Convention of Paris, disputes concerning the application to the
above-mentioned persons of the provisions of the Danzig Constitution and
other laws of Danzig ?
(2) What is the exact interpretation of Article 104 (5) of the Treaty of
Versailles and of Article 33, paragraph 1, of the Convention of Paris, and,
if the reply to question (1) is in the affirmative, of the relevant
provisions of the Constitution of the Free City ?"
[47] With regard to the first of these questions, the Court considers it
necessary to determine at the outset the precise meaning of the question as
submitted.
[48] The question consists of two parts. The first part relates to the
sources of law applicable to the question of the treatment of Polish
nationals and other persons of Polish origin or speech in the territory of
the Free City of Danzig; here the point is whether, besides the treaty
stipulations mentioned in the question, the Constitution of the Free City is
also applicable. The second part asks whether the Polish Government is
entitled [p20] to resort to the procedure provided for in Article 103 of the
Treaty of Versailles and Article 39 of the Convention of Paris in disputes
concerning the application to the above-mentioned persons of the provisions
of the Danzig Constitution and other laws of Danzig. Are these two parts to
be read together as one question, or do they constitute two separate and
distinct questions ? In other words, does the first part refer to the
applicability of the Danzig Constitution as a general question, without
reference to the right of the Polish Government to resort to the procedure
laid down in Article 103 of the Treaty of Versailles and Article 39 of the
Convention of Paris, or does it refer to the applicability of the
Constitution solely from the point of view of the Polish Government's right
to resort to such procedure in disputes concerning the application to Polish
nationals and other persons of Polish origin or speech, of the provisions of
the Danzig Constitution and other laws of Danzig ?
[49] So far as the Court is aware, no question of the right of invoking the
Danzig Constitution by private individuals before Danzig tribunals or by the
League of Nations as guarantor of the Constitution has been raised in
proceedings before the High Commissioner or the Council. The terms of the
dispute between Poland and Danzig leading to the present proceedings before
the Court and the use of the word "accordingly" (par cons�quent) in the text
of the question point to the conclusion that the first part is asked in view
of the consequence contained in the second part, so that they are logically
connected with each other and are to be considered as one question.
Moreover, the Council Resolution expressly refers to "two questions" on
which the Council requests the Court to give an advisory opinion; and the
second question says: "if the reply to question (1) is in the affirmative".
Reading the question in this sense, the Court will proceed to examine the
points raised by it. [p21]
[50] The Constitution of the Free City presents certain peculiarities which
are not to be found in the constitutions of other countries. By Article 103
of the Treaty of Versailles, the Constitution of the Free. City was to be
drawn up by the duly appointed representatives of the Free City in agreement
with a High Commissioner to be appointed by the League of Nations, and was
to be placed under the guarantee of the League. It was in pursuance of this
article that the Constitution of the Free City was drawn up, and by the
Council Resolution of November 17th, 1920, it was placed under the guarantee
of the League. According to Viscount Ishii's report, which was adopted by
the Council on November 17th, 1920, the guarantee of the League implies:
"(1) that this Constitution will have to obtain the approval of the League
of Nations;
(2) that the Constitution can only be changed with the permission of the
League of Nations; and
(3) that' the constitutional life of the Free City of Danzig must always be
in accordance with the terms of this Constitution".
[51] The League, as guarantor of the Constitution, is therefore concerned
not merely with the text of the Constitution, but also with the proper
application of it. It was at the request of the League that an article was
inserted in the definitive text of the Constitution as Article 42, reading:
"The Senate of the Free City shall furnish to the League of Nations at any
time upon the request of the latter, official information regarding the
public affairs of the Free City."
[52] The object of this provision is obvious. It is to enable the League to
exercise its rights and fulfil its duties concerning inter alia the actual
application of the Constitution.
[53] From what has been said above, it follows that the League of Nations,
as guarantor of the Constitution of the Free City, has the right - which, in
practice, it exercises through the Council - as well as the duty, to
intervene in the event of an erroneous application by Danzig of its
Constitution. [p22]
[54] The question submitted to the Court does not, however, envisage the
right of the Polish Government to have recourse to the League, in the
latter's capacity as guarantor of the Danzig Constitution. It relates solely
to the right of the Polish Govern�ment acting in its own name, to submit to
the organs of the League of Nations, by the method provided for in Article
103 of the Treaty of Versailles and Article 39 of the Convention of Paris,
disputes concerning the application of the provisions of the Constitution
and other laws of Danzig to Polish nationals and other persons of Polish
origin or speech - in other words,-to resort to the compulsory arbitration
of those organs.
[55] As the scope of the two above-mentioned articles is not identical, they
must be examined separately.
[56] The relevant passage of Article 103 of the Treaty of Versailles is
paragraph 2, which provides as follows:
"The High Commissioner will also be entrusted with the duty of dealing in
the first instance with all differences arising between Poland and the Free
City of Danzig in regard to this Treaty, or any arrangements or agreements
made thereunder."
[57] This paragraph makes no mention of the Constitution of the Free City as
a subject within the compulsory arbitral jurisdiction of the High
Commissioner. The fact that the Constitution was drawn up with the
collaboration of the League and has been placed under the guarantee of the
League is, of course, of great importance in all questions affecting the
relations between Danzig and the League, but this fact cannot, in the
opinion, of the Court, confer on the Constitution, within the meaning of
Article 103, paragraph 2, of the Treaty of Versailles, the legal character
of an arrangement or agreement "made there-under".
[58] Article 39 of the Convention of Paris is wider in character. It
provides as follows:
"Any differences arising between Poland and the Free City of Danzig in
regard to the present Treaty or to any subsequent agreements, arrangements
or conventions, or to any matter affecting the relations between Poland and
the Free City, shall be submitted by one or the other Party to the decision
of the High Commissioner, who [p23] shall, if he deem it necessary, refer
the matter to the Council of the League of Nations."
[59] According to this article, and quite apart from questions relating
either to the Convention itself or to "subsequent agreements, arrangements
or conventions", two conditions must be fulfilled in order to justify either
Party to the Convention in submitting disputes to the High Commissioner,
namely, (1) the dispute must be a difference "arising between Poland and the
Free City", and (2) it must relate to a matter "affecting the relations
between Poland and the Free City". The point on which the Court is asked to
give its opinion amounts therefore to this: does a dispute concerning the
application of the Danzig Constitution and other laws of Danzig to Polish
nationals and other persons of Polish origin or speech, fulfil the two
conditions mentioned above?
[60] The Polish Government contends that all constitutional and treaty
restrictions upon the independence of the Free City are organic limitations
which are so intimately connected with one another that they reveal a "unity
of purpose"; that the guarantee of the Constitution by the League, being
subordinated to the respect of the treaty rights of Poland, constitutes an
inseparable element of the legal status of Danzig; that this legal status is
sui generis; and that consequently the ordinary legal distinction between
matters of a domestic and of an inter-national character does not hold good
in the present case. According to the Polish Memorial, "these questions
cannot be answered purely and simply by reference to the prevailing legal
conceptions governing the interrelationship between the municipal [legal
system and the international legal system [FN1]"; apart from this, the
Polish Government in no way disputes the principle that in general the
application of a constitution is essentially a matter of domestic concern.
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation by the Registry.
---------------------------------------------------------------------------------------------------------------------
[61] The Court is unable to accept the contention of the Polish-Government.
In its opinion, the fact that the legal status of Danzig is sui generis does
not authorize it to depart from the ordinary rules governing relations
between States and to establish new rules for the relations between Poland
and Danzig. The general principles of international law apply to [p24]
Danzig subject, however, to the treaty provisions binding upon the Free City
and to decisions taken by the organs of the League under these provisions.
The peculiar character of the Danzig Constitution, as has been said above,
affects only the relations between Danzig and the League. A violation or an
erroneous application of the Constitution by Danzig is, there-fore, so far
as international relations are concerned, a matter solely between the
League, as guarantor, and Danzig. With regard to Poland, the Danzig
Constitution, despite its peculiarities, is and remains the Constitution of
a foreign State. Any grievance which Poland may allege against the Free City
arising out of the application by the latter of its Constitution as such
cannot therefore give rise between Poland and the Free City of Danzig to
differences in regard to a matter affecting the relations between Poland and
the Free City within the meaning of Article 39 of the Convention of Paris;
differences, submitted to the High Commissioner under these conditions
cannot therefore be entertained by him.
[62] It should however be observed that, while on the one hand, according to
generally accepted principles, a State cannot rely, as against another
State, on the provisions of the latter's Constitution, but only on
international law and international obligations duly accepted, on the other
hand and conversely, a State cannot adduce as against another State its own
Constitution with a view to evading obligations incumbent upon it under
international law or treaties in force. Applying these principles to the
present case, it results that the question of the treatment of Polish
nationals or other persons of Polish origin or speech must be settled
exclusively on the bases of the rules of international law and the treaty
provisions in force between Poland and Danzig.
[63] The application of the Danzig Constitution may however result in the
violation of an international obligation incumbent on Danzig towards Poland,
whether under treaty stipulations or under general international law, as for
instance in the case of a denial of justice in the generally accepted sense
of that term in international law. On this point, the Court refers to its
Advisory Opinion No.15; in this Opinion - which deals [p25] with the
jurisdiction of the Danzig Courts in regard to pecuniary claims against the
Polish Administration of Danzig railway officials who have passed into the
Polish service - the Court, whilst upholding this jurisdiction, adds that
this conclusion does not affect the right conferred on Poland by Article 39
of the Convention of Paris to resort to the international procedure provided
for in that article, if, for instance, a decision of the Danzig Courts
should conflict, either with the general principles of international law or
with the rules governing the relations between Poland and Danzig. However,
in cases of such a nature, it is not the Constitution and other laws, as
such, but the international obligation that gives rise to the responsibility
of the Free City. This is in conformity with the general principle of the
international responsibility of States and with the decision given by the
Court in the case concerning certain German interests in Polish Upper
Silesia (Judgment No. 7) and is, moreover, admitted by the Government of the
Free City in its written statement submitted to the Court. Should such a
case arise, Poland would undoubtedly be entitled to submit it to the organs
of the League under Article 103 of the Treaty of Versailles and Article 39
of the Convention of Paris.
[64] The question put to the Court relates also to the application of "other
laws of Danzig". As, in the opinion of the Court, the peculiar
characteristics of the Danzig Constitution do not bring it within the domain
of the international relations between Danzig and Poland, it follows a
fortiori that the other laws of Danzig are, similarly, matters of domestic
concern, and that questions relating to their application cannot be
submitted to the organs of the League by the compulsory arbitral procedure
mentioned above.
*
[65] The Court would point out that the foregoing must not be taken to mean
that it has sought to give a complete interpretation of Article 39 of the
Convention of Paris. The Court has not lost sight of the Council Resolution
of June nth, 1925, with reference to procedure before the High Commissioner,
and has only dealt with the question in so far as is necessary for the
purposes of the present case. [p26]
***
[66] The Court will now pass to the second question, which reads:
"(2) What is the exact interpretation of Article 104 (5) of the Treaty of
Versailles and of Article 33, paragraph 1, of the Convention of Paris, and,
if the reply to question (1) is in the affirmative, of the relevant
provisions of the Constitution of the Free City ?"
[67] First, as to the interpretation of Article 104: 5 of the Treaty of
Versailles. This article reads as follows:
"The Principal Allied and Associated Powers undertake to negotiate a treaty
between the Polish Government and the Free City of Danzig, which shall come
into force at the same time as the establishment of the said Free City, with
the following objects:
����.
(5) to provide against any discrimination within the Free City to the
detriment of citizens of Poland and other persons of Polish origin or
speech."
[68] Article 104 of the Treaty of Versailles contains a mandate given by the
signatories of the Treaty and accepted by the Principal Allied and
Associated Powers to negotiate a treaty between Poland and Danzig with
certain specified objects, which treaty was to come into force at the same
time as the establishment of the Free City. The objects, of which one is set
out in paragraph (5), were expressed in the form of certain general
principles, the precise scope and mode of application of which were to be
defined by the terms of the treaty to be negotiated. This appears more
clearly from the French text of the article.
[69] In this connection, the following passage from the Resolution of the
Conference of Ambassadors of May 5th, 1920, is worth quoting:
"The Conference of Ambassadors, firmly resolved to ensure the strict
execution of the stipulations of the Treaty of Versailles relative to Danzig
by guaranteeing [p27] to the population of the Free City as well as to the
Polish Government the free exercise of the rights conferred upon them by the
Treaty, and firmly resolved also not to tolerate any action in any quarter
calculated to disturb the operation of the system of which the main lines
have been settled by Articles 102 to 107 (inclusive) of the Peace Treaty
.... declares that the convention referred to in Article 104 should be
concluded as soon as possible [FN1]."
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation provided by the Danzig Government.
---------------------------------------------------------------------------------------------------------------------
[70] The Treaty of Versailles therefore merely indicates the "main lines" of
the regime of the Free City. Moreover, the language used in the Resolution
above quoted admits of the conclusion that, in the opinion of the Conference
of Ambassadors, the advantages guaranteed to Poland by Article 104 of the
Treaty of Versailles were to be secured to her by the future convention to
be concluded between Poland and Danzig and that the guarantee became
effective between Poland and Danzig only in virtue of the latter convention.
[71] The object of Article 104, paragraph (5), is to provide against any
discrimination to the detriment of citizens of Poland and other persons of
Polish origin or speech. The first point to be considered is the meaning of
the expression: "other persons of Polish origin or speech". It has been
interpreted by both Governments concerned to include Danzig citizens as well
as citizens of other States, provided they are of Polish origin or speech.
The Court does not therefore consider it necessary to go further into this
question, which henceforth is of theoretical interest only, and it adopts
the view that the expression covers all persons of Polish origin or speech
(other than Polish citizens) regardless of their nationality.
[72] It will be observed that the group of persons which the signatories of
the Treaty of Versailles had in mind are those who possess certain
attributes, namely, Polish citizenship, Polish origin, or Polish speech.
[73] The prohibition against discrimination can best be understood in the
light of the circumstances which led to the creation of Danzig as a Free
City. The separation of Danzig from Germany was contrary to the wishes of
the German people. [p28] Almost the whole of the population of that city was
German, and the Peace Conference, in order to assure to Poland free and
secure access to the sea, decided to make Danzig a Free City without
incorporating it in Poland. In this respect, some apprehension might be
entertained lest the Polish people in Danzig would be exposed to
discriminatory measures on the part of the Free City for no other reason
than that they were Poles. An unsympathetic or even hostile attitude in a
community towards a group of persons merely because of their possessing a
particular attribute, e.g. nationality, origin, race or religion, is not
without precedent. It is natural to suppose that it was with a view to
preventing any such discriminatory measures that the authors of the Treaty
of Versailles thought it desirable to prescribe as one of the objects of the
treaty between Poland and Danzig the terms of which were to be negotiated by
the Principal Allied and Associated Powers, that a clause prohibiting such
discriminatory measures should figure therein. It is precisely because of
their Polish character that discrimination against Polish nationals and
other persons of Polish origin or speech is prohibited at Danzig.
[74] On the other hand, the injunction "to provide against any
discrimination to the detriment of" these persons is of general application,
in so far as such discrimination is made on account of Polish citizenship,
origin or speech.
[75] It should be remarked in this connection that the prohibition against
discrimination, in order to be effective, must ensure the absence of
discrimination in fact as well as in law. A measure which in terms is of
general application, but in fact is directed against Polish nationals and
other persons of Polish origin or speech, constitutes a violation of the
prohibition. A similar view has already been expressed by the Court in its
Advisory Opinion No. 6 relating to German settlers in Poland. Whether a
measure is or is not in fact directed against these persons is a question to
be decided on the merits of each particular case. No hard and fast rule can
be laid down. [p29]
[76] The Polish Government contends that the stipulation in question
prohibits any discrimination to the detriment of Polish citizens and other
persons of Polish origin or speech as compared with Danzig citizens of
German origin; in other words, that the former are entitled to national
treatment. The Polish Government, however, in its interpretation, makes an
express exception with regard to political rights (the right to vote and to
be elected) and the exercise of public functions "which would be the
expression of the attributes of the territorial power of the Free City".
Moreover, according to the submissions in the Polish memorial of March 26th,
1931, reproduced above, and which have not been withdrawn, the Polish
Government contends that Polish citizens and other persons of Polish origin
or speech are entitled to the same treatment as Danzig citizens of Polish
origin in so far as concerns "their free national development" and
especially "the use of the mother-tongue in education, internal
administration and the administration of justice". Here the comparison is
not with Danzig citizens belonging to the German majority, but with Danzig
citizens belonging to the Polish minority.
[77] With regard to this interpretation, the following observations may be
made:
In the first place, the text does not say between whom no discrimination is
to be made. The Polish argument makes a very important addition, namely, a
standard of comparison; this addition finds no support in the text.
[78] In the second place, the two exceptions suggested by the Polish
Government not only find no support in the text, but are directly contrary
to the very wide terms of the prohibition which says: "to provide against
any discrimination".
[79] The Polish interpretation would result in granting national and, in
certain respects, also minority treatment. In the Court's opinion, however,
the object of the prohibition is to prevent any unfavourable treatment, and
not to grant a special r�gime of privileged treatment. [p30]
[80] In short, the Court is of the opinion that the contents of Article 104:
5 are of a purely negative character in that they are confined to a
prohibition of any discrimination; it is for this reason unable to read into
them any standard of comparison.
*
[81] It follows from the above considerations that the legal effect of
Article 104: 5 of the Treaty of Versailles was simply to oblige the
Principal Allied and Associated Powers to insert in the convention, the
terms of which they undertook to negotiate, provisions which would prevent
in the Free City any discrimination of the kind indicated above.
[82] It has, however, been contended that, although Danzig is not a
signatory of the Treaty of Versailles, yet by its acceptance, on November
9th, 1920, of the above quoted decision of the Principal Allied and
Associated Powers of October 27th, 1920, establishing the Free City, Article
104: 5 of the Treaty of Versailles becomes binding on Danzig and contains
therefore rules of law which are applicable as between Poland and Danzig.
[83] The Court has duly considered from this point of view the terms of
this. decision and its acceptance by the Free City. Having satisfied itself
that these texts are in this respect capable of different constructions, the
Court simply observes that no precise conclusion in either sense can be
deduced from them.
[84] It is certain, on the other hand, that the Free City, having accepted
the convention which the Principal Allied and Associated Powers had
negotiated in pursuance of the terms of Article 104 of the Treaty of
Versailles, thereby in a sense accepted that article. This acceptance,
however, is merely the recognition of the mandate contained in the article
of which the Convention is the application. The acceptance of Article 104 by
the Free City cannot bestow upon the provisions of that article a meaning
different from that which they bear in the relations between signatories to
the Treaty. Moreover, the mandate is enforceable in respect of the Free City
not only as a mandate conferred on the Principal Allied [p31] and Associated
Powers, but also because it indicates the objects to be attained by the
Danzig-Polish Convention.
[85] The question whether paragraph 5 of Article 104, by reason of its
reproduction with slight additions in the second part of Article 33,
paragraph 1, of the Convention of Paris, has become a rule of law binding on
the Free City in relation to Poland, is an entirely different matter. In
regard to this the Court observes that the contents of this provision have
become binding on the Free City not because it is a rule in the Treaty of
Versailles, but because it is a clause of the Convention of Paris.
*
[86] Before dealing with the exact interpretation of Article 33, paragraph
1, of this Convention, the Court will consider the precise relation of that
article to Article 104: 5 of the Treaty of Versailles. It should be observed
in this connection that, in the case concerning access to and anchorage in
the port of Danzig of Polish war vessels (Opinion of Dec. nth 1931), the
Court did not express any opinion regarding the relations between Article
104 of the Treaty of Versailles and the Convention of Paris.
[87] It has been suggested that the very wording of the questions submitted
to the Court shows [that, in the opinion of the Council, Article 104: 5 of
the Treaty of Versailles and Article 33 of the Convention of Paris have the
same legal value, in view of the expressions "solely by reference to Article
104 (5) of the Treaty of Versailles and Article 33, paragraph 1, of the
Convention of Paris", and "the exact interpretation of Article 104 (5) of
the Treaty of Versailles and of Article 33, paragraph 1, of the Convention
of Paris". In the opinion of the Court, however, no conclusion as to the
legal value attributed by the Council to the two provisions in question can
be drawn from these expressions. The dispute between Poland and Danzig
before the High Commissioner as to whether or not the Danzig Constitution
has an international character in relations between the two countries,
sufficiently explains why the question put to the Court either contrasts
these two treaty provisions with the Constitution or asks the Court to
interpret them both. The questions cannot therefore be considered as
implying that these two stipulations have an equal legal value. [p32]
[88] As between Danzig and Poland, the Convention of Paris is the instrument
which is directly binding on Danzig; but in case of doubt as to the meaning
of its provisions, recourse may be had to the Treaty of Versailles, not for
the purpose of discarding the terms of the Convention, but with a view to
elucidating their meaning. This view is consistent with the report of M.
Quinones de Leon, adopted by the Council on July 7th, 1923.
[89] A difference of opinion had arisen between the High Com-missioner and
the Polish authorities regarding the relation between the Treaty of
Versailles and the Convention of Paris. In a letter to the Secretary-General
of the League of Nations dated June 4th, 1923, the High Commissioner
expressed the view that, as regards the rights of the two States forming the
subject of certain articles of the Treaty of Versailles, the - Convention of
Paris, and not the Treaty, was to be regarded as decisive. In his reply
dated July 4th, 1923, the Polish representative argued that the Convention
of November 9th, 1920, was not to be regarded as the decisive text, but that
the meaning and terms of that Convention must be read in close conjunction
with the Treaty of Versailles. "The Treaty constitutes the original legal
basis; the Convention merely embodies clauses ensuing therefrom." The
above-mentioned report of July 7th, 1923, decides between these opposing
views. This report was officially communicated to the Governments of Poland
and Danzig and to the High Commissioner of the League of Nations at Danzig.
It is well to reproduce here the relevant passage:
"In the first place the question must be determined as to what is the exact
relation between Article 104 of the Peace Treaty of Versailles and the
Treaty concluded at Paris on November 9th, 1920. I am of opinion that the
Treaty of November 9th, 1926, constitutes an entirely valid legal basis for
the relations between Danzig and Poland, but that in the event of doubt as
to the interpretation of any clause in the Treaty of November 9th recourse
may be had, in order to dispel such doubt, to Article 104 of the Treaty of
Versailles in virtue of which the Treaty of November 9th, 1920. was
concluded. If I rightly understand [p33] the position, the Polish
representative appears to accept this standpoint, as a result of the
exchange of views which took place at the meeting of the Council on the 4th
instant.''
[90] The conclusion of the Convention does not in any way impair the legal
value of Article 104 of the Treaty as an authentic expression of the mandate
conferred on the Principal Allied and Associated Powers and of the objects
of the Convention ; from this point of view and to this extent, the article
is enforceable in respect of the Free City.
*
[91] Having interpreted Article 104, paragraph 5, of the Treaty of
Versailles and established the relation between it and Article 33 of the
Convention of Paris, the Court will now proceed to examine paragraph 1 of
that article.
[92] The paragraph reads as follows:
"The Free City of Danzig undertakes to apply to racial, religious and
linguistic minorities provisions similar to those which are applied by
Poland on Polish territory in execution of Chapter I of the Treaty concluded
at Versailles on June 28th, 1919, between Poland and the Principal Allied
and Associated Powers, to provide, in particular, against any
discrimination, in legislation or in the conduct of the administration, to
the detriment of nationals of Poland and other persons of Polish origin or
speech, in accordance with Article 104, paragraph 5, of the Treaty of
Versailles."
[93] This provision consists of two parts separated by a comma, the second
part beginning with the words: notamment � pourvoir (English text: "to
provide, in particular"). The principal points on which the Polish
Government and the Government of the Free City hold divergent views are: (1)
the relation between the two parts of the paragraph, and (2) the
interpretation to be given to the second part. This text not being
absolutely clear, it may be useful, in order to ascertain its precise
meaning, to recall here somewhat in detail the various drafts which existed
prior to the adoption of the text now in force.
[94] When the Conference of Ambassadors began the work of drafting the
Convention, it had before it, as has already been mentioned, three
preliminary drafts, one presented by Danzig and two by Poland. The Danzig
draft contained [p34] detailed provisions relating to the rights of the
nationals of the two contracting Parties. These provisions dealt with, inter
alia, the question of reciprocal national treatment in regard to the
acquisition of immovable property and the exercise of commercial and
industrial activities of all kinds. In the first Polish draft, the chapters
dealing with "public rights" and "public education" contained detailed
provisions concerning the situation of the Polish minority and the rights of
Polish nationals at Danzig on the basis of reciprocal national treatment.
The second Polish draft contained provisions for national treatment of
Polish nationals based on the principle of reciprocity.
[95] The question of national treatment of Polish nationals, which had been
raised in both the Danzig and the Polish drafts, doubtless received the
consideration of the Conference of Ambassadors when it prepared its draft of
the Convention; but instead of granting to Polish nationals at Danzig
national treatment, whether with or without reciprocity, and whether in
certain respects or in all respects, the Conference of Ambassadors dealt
with the matter in Article 30 of its draft of October 16th, 1920, the first
paragraph of which is as follows:
'' Article 30. - The Free City of Danzig undertakes to apply to racial,
religious and linguistic minorities provisions identical with those which
are applied by Poland on Polish territory, in execution of Chapter I of the
Treaty concluded at Versailles on June 28th, 1919, between Poland and the
Principal Allied and Associated Powers, with a view, in particular, to
ensure the application of the provisions laid down in Article 104, paragraph
5, of the Treaty of Versailles with Germany."
[96] This article, which appeared without any change in the revised text of
the Conference of Ambassadors under date of October 20th, corresponds to
Article 33 of the Convention of Paris.
[97] It should be noticed that the treatment accorded by Article 30 of the
draft to Polish nationals and other persons of Polish origin or speech is
not national treatment, but the r�gime of minority protection, and that the
application of provisions [p35] identical to those applied by Poland in
Polish territory in accordance with Chapter I of the Polish Minorities
Treaty of June 28th, 1919, constituted, in the opinion of the Conference of
Ambassadors, the fulfilment of the mandate contained in Article 104: 5 of
the Treaty of Versailles.
[98] However that may be, Article 33 of the Convention of Paris differs from
Article 30 of the Conference draft in two respects, namely: (1) the word
"identical" in the first part of the first paragraph of the article is
changed to "similar", and (2) the second part: "with a view, in particular,
to ensure the application of the provisions laid down in Article 104 (5) of
the Treaty of Versailles" is changed to: "to provide, in particular, against
any discrimination, in legislation or in the conduct of the administration,
to the detriment of nationals of Poland and other persons of Polish origin
or speech, in accordance with Article 104, paragraph 5, of the Treaty of
Versailles". The substitution of the word "similar" for "identical" would
not seem to be of importance for the purposes of the present Opinion. On the
other hand, the change in the second part of the paragraph has given rise to
different interpretations. In the text finally adopted, this second part
reproduces the words of Article 104: 5 of the Treaty of Versailles with the
addition, in the body of the text, of the words: "in legislation or in the
conduct of the administration" ; this addition does not, however, materially
affect the respective interpretations given by the two Governments
concerned.
[99] Although the Court, in giving its interpretation of the clause in
question, is in no way bound by the views of the interested Governments, it
will be well to indicate here what these views are.
[100] The Government of the Free City maintains in substance that the second
part of the paragraph should be read in the light of the first part, on the
ground inter alia that the introduction of the second part by the word
"notamment" logically renders the first part a principal clause, and the
second a subsidiary clause, so that what is said in the latter must
necessarily be implied and therefore included in the former. In a word, the
whole paragraph, according to the Danzig interpretation, contains one
undertaking only, the second part [p36] merely confirming the undertaking
assumed by Danzig in the first part. The Polish Government, on the other
hand, contends that in the first paragraph of the article, the first part
relates to the protection of minorities in general, whereas the second
relates to the treatment of Polish nationals and other persons of Polish
origin or speech in particular, a treatment which, according to the Polish
interpretation, must be national treatment, subject to the two exceptions
already noticed.
[101] As already stated above, the solution adopted by the Conference of
Ambassadors in its draft of October 20th, 1920, is the application to Polish
nationals and other persons of Polish origin or speech of the general system
of minority protection. This draft is described as a "final text", and the
intention of the Conference of Ambassadors in regard thereto may be clearly
seen from its letter to the Danzig delegation under date of October 28th,
1920:
"The Conference of Ambassadors never intended to call in question the
essential solutions embodied in the draft treaty accompanying my letter to
you of the 20th instant. The Conference thought and still thinks that a
great deal would be gained if, without questioning any of these solutions,
both Parties would agree upon any additions or modifications of detail which
would tend, either to clarify the meaning of certain provisions or simplify
their application, and would eliminate any causes of hesitancy calculated to
compromise agreement between them. It is however to be clearly understood
that the text sent you on the 20th instant will not be modified in any way
whatever except with the agreement of the two Parties who are to sign the
treaty [FN1]."
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation by the Registry
---------------------------------------------------------------------------------------------------------------------
[102] In this letter the Conference of Ambassadors declared in unmistakable
terms that any subsequent additions or modifications introduced into the
draft were to be confined to matters of detail, without calling in question
any of the solutions already adopted. To interpret this text as implying
national treatment, as the Polish Government contends, would, in the opinion
of the Court, constitute a fundamental change [p37] contrary to the
expressed intentions of the Conference of Ambassadors.
[103] It is true that in the note of the Conference of Ambassadors annexed
to its letter of October 20th, 1920, to the Secretary-General of the League
of Nations, reference is made to "certain guarantees regarding treatment
(equality of treatment)", but the words "equality of treatment" do not
suggest any particular standard of comparison, so that no conclusion can be
drawn that they mean national treatment. The fact should be emphasized that
the note was referring to the draft of the Convention, of the same date,
made by the Conference. In that draft, Article 30 indisputably provided for
the application of the system of minorities protection. The inference, if
any, which can be drawn from the use of the expression "equality of
treatment" is that it means equality of treatment within the r�gime of the
protection of minorities. The passages quoted above from Viscount Ishii's
report of November 17th, 1920, afford further evidence to the same effect.
[104] It has been suggested that the letter of the Danzig delegation to the
Conference of Ambassadors, dated November 5th, 1920, and the latter's reply
dated November 6th, support the Polish contention. The letter of the Danzig
delegation was occasioned by the opinion expressed by the Polish section of
the Constituent Assembly that Polish nationals in the Free City would also,
ipso facto, enjoy political rights. The letter asked the Conference of
Ambassadors to give an assurance that the new text of Article 30 could not
admit of such an interpretation. The Conference replied that it had no
difficulty in giving the assurances desired in this respect.
[105] It has been argued that, in asking for this assurance, the Danzig
delegation must have been assuming that national treatment was accorded by
the text in question to Polish nationals and other persons of Polish origin
or speech. In the Court's opinion, however, it is far more probable that the
intention of the Danzig delegation, in making the enquiry in question, was
to satisfy itself, by raising a specific aspect of the problem, that the
text did not mean treatment equal [p38] to that of Danzig nationals. Be that
as it may, no argument a contrario can be deduced from the exchange of
letters referred to.
[106] The Polish Government contends that if Polish nationals and other
persons of Polish origin or speech be not accorded national treatment under
the second part of the text in question, they would have very few
guarantees, and that such a situation would scarcely be consonant with the
policy which led to the creation of the Free City.
[107] In order to appreciate this objection, it is well to consider the
sense in which the term "minorities" is used in the first part of Article
33, paragraph 1, of the Convention of Paris, and with that object to examine
the provisions of Chapter I of the Polish Minorities Treaty of June 28th,
1919, particularly Articles 2, 7, 8, 9 and 12 of that Treaty.
[108] By Article 2, Poland undertakes to assure full and complete protection
of life and liberty to all inhabitants of Poland without distinction of
birth, nationality, language, race or religion, and all inhabitants shall be
entitled to the free exercise of any creed, religion or belief, whose
practices are not inconsistent with public order or public morals.
[109] Article 7 provides that all Polish nationals shall be equal before the
law and shall enjoy the same civil and political rights.
[110] Article 8 provides that Polish nationals who belong to racial,
religious or linguistic minorities shall enjoy the same treatment in law and
in fact as the other Polish nationals, and that they shall also have the
right, among others, to use their own language.
[111] Under Article 9 Poland is bound to provide in the public educational
system, subject to certain conditions, adequate facilities for ensuring to
the children of Polish nationals of other than Polish speech primary
instruction through the medium of their own language. [p39]
[112] Finally, Article 12 deals with the guarantee accorded by the League of
Nations to the provisions of the Minorities Treaty: this guarantee is given
"in so far as they" (the provisions of Articles 1 to 11) "affect persons
belonging to racial, religious or linguistic minorities".
[113] It will be seen that so far as the treatment of minorities is
concerned, a distinction is drawn in the Treaty between minorities in the
broad sense and minorities in the narrow sense. Article 2 refers to "all
inhabitants", which also included minorities consisting of non-citizens of
the State. This interpretation is in conformity with the practice of the
Council and with the Court's Advisory Opinion No. 7 on the question
concerning the acquisition of Polish nationality. The members of minorities
who are not citizens of the State enjoy protection - guaranteed by the
League of Nations - of life and liberty and the free exercise of their
religion, while minorities in the narrow sense, that is, minorities the
members of which are citizens of the State, enjoy - under the same guarantee
- amongst other rights, equality of rights in civil and political matters,
and in matters relating to primary instruction.
[114] The Court is of opinion that in the first part of Article 33,
paragraph 1, the term "minorities" is employed in its wide sense. This view
was, moreover, shared by the two Governments concerned when the Warsaw
Agreement of October 24th, 1921, was being [drawn [up. Indeed, the formal
reservation of the Polish Government, contained in Article 229 of that
Agreement between Poland and Danzig, described the rights referred to in the
clause in question as "the minority rights of Polish nationals in the Free
City of Danzig".
[115] The Court is unable to attach decisive importance to the opinion of
the Polish Government according to which, because Polish nationals and other
non-Danzig persons of Polish origin or speech in the Free City - like any
other foreigners - only enjoy, under the general system of minority
protection, rights in respect of life, liberty, and freedom of religion
(which rights, in the opinion of the Polish Government, are entirely
inadequate), the second part of the first paragraph of Article 33 must
necessarily imply national treatment of the above-mentioned persons. Whether
the granting to these persons, de lege [p40] ferenda, of more extensive
guarantees than those contained in Article 2 of the Polish Minorities Treaty
might be considered, is a question going beyond the terms of the question
submitted to the Court. The duty of the Court is to interpret the text as it
stands, taking into consideration all the materials at the Court's disposal.
Moreover, it must be observed that the distinction between citizens and
non-citizens obtains to a greater or less extent in almost all countries,
and is the standard adopted in all the Minorities treaties; it may not be
entirely satisfactory from the point of view of a certain group or groups of
foreigners, but it cannot be said to be unreasonable or unjust. It is to be
observed in this connection that the Polish Minorities Treaty, like all
other Minorities treaties, lays down the minimum guarantees which the State
concerned is required to accord. The State is at liberty, either by means of
domestic legislation or under a convention, to grant to minorities rights
over and above those assured by the Minorities Treaty.
[116] For the reasons set forth above, the Court has reached the conclusion
that the Polish argument, according to which the second part of the first
paragraph of Article 33 of the Convention of Paris provides national
treatment for Polish nationals and other non-Danzig persons of Polish origin
or speech in the Free City is not justified. Nor, on the other hand, can the
Court accept the argument of the Danzig Government that the second part of
the first paragraph of Article 33 adds nothing to the obligation arising
from the first part of that paragraph, and does no more than confirm that
obligation.
[117] In the opinion of the Court, paragraph 1 of Article 33 of the
Convention of Paris should be considered as containing two undertakings.
According to the first part of the paragraph, the Free City undertakes to
apply to minorities in her territory provisions similar to those applied by
Poland in Polish territory in accordance with Chapter I of the Polish
Minorities Treaty of June 28th, 1919; and the second part contains the
undertaking to provide against any discrimination to the detriment of Polish
nationals and other persons of Polish origin [p41] or speech on account of
their Polish nationality, origin or speech, in accordance with Article 104:
5 of the Treaty of Versailles.
[118] The second undertaking assumed by Danzig, resulting from the
incorporation of Article 104: 5 of the Treaty of Versailles in the text of
the Convention of Paris, may therefore be considered as a further guarantee
that the Free City, whether applying provisions similar to those applied in
Poland by the Polish Government to the minorities within its territory or
granting more extensive or additional rights to these minorities or to
foreigners not belonging to a minority, will allow of no differential
treatment of Polish nationals and other persons of Polish origin or speech
to their detriment on account of their Polish nationality, origin, or
speech.
[119] It has been suggested that if only discrimination on account of Polish
nationality, origin or speech is prohibited, it would be possible for Danzig
to exclude all Poles from its territory, provided that the exclusion applied
equally to other foreigners, a consequence which would be contrary to the
principle of Poland's free and secure access to the sea through the port of
Danzig. The Court, without expressing any opinion on the question whether a
State can exclude all foreigners from its territory, observes that it is
unable to contemplate any such possibility with regard to the admission of
Poles to the Free City's territory. The free and secure access to the sea
which is guaranteed to Poland by several articles of the Convention of
Paris, is irreconcilable with a system under which the territory of Danzig
would be closed to Poles. Article 33 regulates the legal situation not only
of Polish nationals but also of other persons of Polish origin or speech who
are already, whether temporarily or permanently, within the territory of the
Free City. The admission of foreigners to the territory of a State is a
question which is not necessarily connected with the legal status of persons
within its territory. [p42]
***
[120] The Court, having answered question (1) in the negative, is not called
upon to give an exact interpretation of the "relevant provisions of the
Constitution of the Free City".
[121] FOR THESE REASONS,
The Court,
by nine votes to four,
is of opinion:
(1) that the question of the treatment of Polish nationals and other persons
of Polish origin or speech in the territory of the Free City of Danzig must,
as between Poland and the Free City, be decided solely by reference to
Article 104: 5 of the Treaty of Versailles and Article 33, paragraph 1, of
the Convention of Paris (as also, if necessary, by reference to other treaty
provisions in force or rules of ordinary international law) and not by
reference to the Constitution of the Free City, with the result that the
Polish Government cannot submit to the organs of the League of Nations
disputes concerning the application to the aforesaid persons of the Danzig
Constitution and other laws of Danzig by the method provided for in Article
103of the Treaty of Versailles and Article 39 of the Convention of Paris
except in the case of disputes concerning the violation, as a result of such
application, of an inter-national obligation of Danzig towards Poland
arising either from treaty provisions in force between them or from ordinary
international law;
(2) a: that Article 104 : 5 of the Treaty of Versailles contains a mandate,
entrusted to the Principal Allied and Associated Powers and accepted by
them, to ensure that the treaty to be concluded between Poland and Danzig
(Convention of Paris) should include provisions binding on the Free City and
safeguarding Polish nationals and other persons (including Danzig nationals)
of [p43] Polish origin or speech in the territory of Danzig against any
differential treatment to their detriment on the ground of their Polish
allegiance, origin or speech; that this provision, which is purely negative
in character, does not establish any standard of comparison for the
application of the prohibition of discrimination;
b: that as between Poland and Danzig, the question of the treatment of
Polish nationals and other persons of Polish origin or speech in the
territory of the Free City is governed by the provisions of Article 33,
paragraph 1, of the Convention of Paris, but that in case of doubt as to the
interpretation of that article, recourse may be had, in order to dissipate
such doubt, to Article 104: 5 of the Treaty of Versailles;
с: that, under Article 33, paragraph 1, of the Convention of Paris, Danzig
has undertaken to apply to Polish nationals and other persons of Polish
origin or speech in the territory of the Free City the minority system
contemplated by Chapter I of the Treaty of June 28th, 1919, between the
Principal Allied and Associated Powers and Poland, as that system is
actually applied in Poland by the Polish Government, and to avoid in her
legislation or in the conduct of her administration any differential
treatment to the detriment of the aforesaid Polish nationals and other
persons, on account of their Polish allegiance, origin or speech, either in
the application to the minorities in her territory of provisions similar to
those applied to minorities in Poland by the Polish Government, or in the
grant of more extensive rights to these minorities or to foreigners not
belonging to minorities;
d: that the question whether, in a given case, an act or failure to act
constitutes a breach of the provisions of Article 33, paragraph 1, of the
Convention of Paris is essentially one of fact to be decided on the merits
of each case. [p44]
[122] Done in French and English, the French text being authoritative, at
the Peace Palace, The Hague, this fourth day of February, one thousand nine
hundred and thirty-two, in two copies, one of which is to be placed in the
archives of the Court, and the other to be forwarded to the Council of the
League of Nations.
(Signed) M. Adatci,
President.
(Signed) A. Hammarskj�ld,
Registrar.
[123] M. Guerrero, Vice-President, Count Rostworowski, MM. Froma-geot and
Urrutia, Judges, declaring that they are unable to concur in the Opinion
given by the Court and availing themselves of the right conferred on them by
Article 71 of the Rules of Court, have delivered the dissenting opinion
which follows hereafter.
[124] Sir Cecil Hurst, whilst concurring in the operative portion of the
present Opinion, declares that he is unable to agree in regard to the
grounds on which it is based, and accordingly has delivered the separate
opinion which follows hereafter.
[125] Baron Rolin-Jaequemyns, Judge, whilst in agreement with the repUes
given by the Court to the questions submitted to it by the Council, declares
that he is unable entirely to accept some of the arguments on which these
replies are based; in this connection he refers to the reservations set out
in the note of Sir Cecil Hurst reproduced below, in which he concurs.
(Initialled) M. A.
(Initialled) A. H.
[p45] Dissenting Opinion of M. Guerrero, Count Rostworowski, Mm. Fromageot
And Urrutia.
[Translation.]
[126] While agreeing, in substance, with the Court's reply to the first
question submitted by the Council, the undersigned judges differ from the
majority in regard to the reply given to the second question, concerning the
interpretation of Article 104 (5) of the Treaty of Peace of Versailles, and
of Article 33, paragraph 1, of the Polish-Danzig Convention of Paris, of
November 9th, 1920.
[127] Article 104 of the Treaty of Peace of Versailles contains an
engagement - not presenting any of the legal characteristics of a mandate -
whereby the Principal Allied and Associated Powers undertook to negotiate a
convention between Poland and Danzig. This convention, known later as the
Convention of Paris of November 9th, 1920, was to ensure the observance and
execution of the various provisions of the said article, which was intended
to determine the rights of Poland, and the treatment to which Poles were
entitled, at Danzig.
[128] It does not result, as a consequence of the Convention having been
negotiated in this way, that the Treaty is left with nothing more than a
contingent interpretative value.
[129] The Convention of Paris is an executive Convention, which implements
the Treaty, and consequently leaves intact the force of the latter. It is
one of those arrangements or agreements "made thereunder" which are
explicitly referred to in Article 103, together with the Treaty of Peace
itself, as subjects for the arbitration of the High Commissioner of the
League of Nations at Danzig, in case of differences arising between Poland
and the Free City of Danzig.
[130] When one considers the repeated declarations of the Conference of
Ambassadors (May 7th, 1920, October 20th, 1920) to the effect that the
rights of Poland in regard to Danzig were "recognized" and "assured" by the
Treaty of Versailles; [p46] when one considers the similar declarations by
Viscount Ishii, Rapporteur to the Council of the League of Nations (November
17th, 1920) to the effect that the rights of Poland in regard to Danzig were
"conferred" upon her by the Treaty, and that the restrictions to the
sovereignty of the Free City, and the obligations incumbent on the Free
City, were "imposed" by the Treaty of Peace; when one considers that the
Free City herself (see Memorial, dated September 20th, 1921, concerning the
access of Polish war vessels) also declares that Article 104 mentions the
economic rights which "Poland enjoys in regard to the Free City by the terms
of the Treaty of Versailles" ; when one considers that the High
Commissioner, for his part, declared (see decision of December 6th, 1921)
that the Treaty of Versailles and the Polish-Danzig Convention are the two
documents upon which every decision must be based; and finally, when one
considers that Article 104 is, in fact, the only article of the Treaty of
Peace which relates to the rights of Poland at Danzig, it is difficult to
see how it can be maintained, to-day, that the provisions of Article 104 do
not contain treaty law governing the relations between Poland and Danzig.
[131] Indeed, the exact opposite is clearly implied in the actual terms of
the question, as worded by the Council in the present case, and also in the
terms of its question in the preceding case concerning the access of
warships to the port of Danzig (Opinion of December nth, 1931).
[132] In the last-named case, when considering, in accordance with the
Council's request, whether Part III, Section XI, of the Treaty of Peace -
i.e. Articles 100 to 108 - had conferred rights or attributions upon Poland
in regard to the access of warships, the Court did not throw any doubt on
the full value of Article 104 as the basis of Polish rights at Danzig.
[133] It was subject to these organic stipulations that the Free City was
created and constituted. These stipulations have been, and continue to be,
the fundamental basis of the rights of Poland at Danzig.
[134] The authors of the Peace Treaty, the Council of the League of Nations,
the High Commissioner, the Free City, and lastly the Court itself, have
always hitherto taken this view. There [p47] appears no valid reason today
for departing from so well-founded an opinion.
[135] According to Article 104 (5), no discrimination is permitted at Danzig
to the detriment of Polish nationals or other persons of Polish origin or
speech.
[136] That is a provision of an absolutely general character.
[137] There is nothing to justify the addition thereto of any restrictions -
whether directly or indirectly. There is nothing to justify any limitation
of their scope, whether by seeking to circumscribe the category of persons
as compared with whom discrimination is forbidden, or by seeking to limit
the category of Polish elements entitled to the benefit of the clause, or
again, indirectly, by requiring proof that the discrimination is based on an
intention to cause prejudice to the Poles.
[138] It cannot be maintained that the discrimination forbidden is to be
understood only as based upon the Polish character of those against whom it
is practiced. It is easy to see that the effect of Article 104 (5) of the
Treaty of Peace would thus be restricted, in the case of Polish nationals at
Danzig, who would merely be. entitled to equality of treatment with
foreigners in general residing in the Free City. It will be readily
perceived that, if this were so, a measure which placed the Polish nationals
at Danzig in a position of inferiority to the nationals of Danzig would not
constitute discrimination such as is forbidden by the Treaty, provided only
that it was declared applicable to all persons of other than Danzig
nationality.
[139] The only difference between the Polish and Danzig elements at Danzig
is that Poles who are not nationals of the Free City do not possess, by
reason of that circumstance, any of the rights and duties of a political
character which are an essential element of allegiance.
[140] Not only would the opposite interpretation, if admitted, add an
arbitrary restriction to the entirely general import of the provisions of
Article 104 (5), but it would further result in annihilating one of the
clauses of the Peace Treaty, which separated the almost wholly German city
of Danzig from Germany, with the sole object of ensuring that Poland -
though not invested with sovereignty - and her nationals and other [p48]
Polish elements should enjoy an entirely special position - a position
differing from that to which foreign countries and their nationals can lay
claim in a foreign city, under ordinary law.
[141] Article 33, paragraph 1, of the Convention of Paris remains within the
framework of Article 104 (5) of the Treaty of Peace, to which it makes
express reference, and to which it states that it conforms. It is a special
undertaking by which Danzig has bound herself, in regard to the various
Polish elements at Danzig, to provide for the observance of these conditions
which governed the creation and establishment of the Free City.
[142] Thus, Article 33, paragraph 1, not only provides for the protection of
the minority elements of the Danzig population - including the members of
the Polish minority - but also for the full application of the r�gime, laid
down in the Treaty of Peace, to all Poles in general.
[143] It cannot be successfully argued that a draft which the Principal
Allied and Associated Powers had, at one time, desired to regard as
definitive, provides ground for deducing, in this respect, a further
restriction limiting the scope of Article 33, paragraph 1, to a mere
application of the Polish Minorities Treaty of June 28th, 1919, to the
minorities at Danzig. That draft was not retained, for the very good reason
that it was recognized by the Principal Allied and Associated Powers as
incomplete, and because it was necessary that the Polish-Danzig Convention,
which they had to negotiate in pursuance of the terms of the Treaty, should
secure the full benefits of Article 104 (5) to all the Polish inhabitants,
in order that it might be in conformity with the said Treaty.
[144] To sum up, under Article 33, paragraph 1, of the Convention of Paris,
the Free City undertakes not only to observe, in her treatment of the Poles
of Danzig nationality forming a minority of the Danzig population, the rules
for the protection of minorities, already stipulated in the Treaty concluded
between Poland and the Principal Powers at the same time as the Peace Treaty
with Germany; she further undertook, at the same time, not to subject other
Polish elements at Danzig to a different treatment from that applied to
other [p49] inhabitants of the Free City, whether of Danzig or of other
nationality.
[145] The observance of the provisions regarding the various Polish elements
at Danzig in accordance with the terms of Article 104 (5) of the Treaty of
Peace of Versailles, could only be and are fully secured in this way.
FOR THESE REASONS,
[146] In regard to the second question asked by the Council, the undersigned
judges are of opinion that:
Article 104 (5) of the Treaty of Peace of Versailles, which conferred on
Poland her rights in the Free City of Danzig, and Article 33 (1) of the
Danzig-Polish Convention of Paris, which provided for the observance and
application of the first-mentioned stipulation, must be construed as meaning
that, as regards Polish nationals and other persons (including Danzig
nationals) of Polish origin or speech, these articles ensure in the fullest
possible way that in the territory of the Free City of Danzig, there may be
no discrimination to the detriment of these various Polish elements, as
compared either with foreigners in general or with Danzig nationals who are
not of Polish origin or speech, except as regards rights of a political
character inherent in the capacity of a citizen of Danzig, no matter what
the basis of such discrimination may be or the intention underlying it.
(Signed) J. G. Guerrero.
( � ) M. Rostworowski.
( � ) Henri Fromageot.
( � ) Francisco Jos� Urrutia.
[p50] Separate Opinion by Sir Cecil Hurst.
[147] I accept the answers which the Court is giving to the questions put to
it by the Council, but I am not satisfied with some of the reasoning on
which those answers are based, and therefore prefer to explain my own point
of view.
I.
[148] I share the view that Article 104 (5) of the Treaty of Versailles is
purely negative in character in the sense that it does not establish any
standard of comparison for the application of the prohibition of
discrimination. What is prohibited is any discrimination, i.e. any measure
or action which placed Poles (whether Poles by nationality, by origin or by
language) in a position of inferiority to any other category of persons in
Danzig whatsoever.
[149] I do not share the opinion stated on page 29 of the Opinion that the
Polish thesis is that this stipulation prohibits discrimination against
Poles as compared with Danzig citizens of German origin, and on page 29 that
this contention adds a very important element, viz., a standard of
comparison which is not borne out by the text. The Polish contention as
formulated at page 23 of the Polish Memoire is as follows:
"Les mots � aucune discrimination � conf�rent � cette stipulation la port�e
la plus g�n�rale et la plus absolue; ils indiquent que l'interdiction du
traitement diff�rentiel .... embrasse indistinctement tous les domaines et
tous les cas possibles."
[150] It is difficult to see how this differs from the standpoint adopted in
the Opinion of the Court. It is true that the Polish Government in its notes
and in the arguments has claimed repeatedly that the clause prohibits
discrimination as compared with Danzig citizens who are not Poles, but this
is [p51] because the claim of the Free City has been that it was only
discriminatory treatment to the prejudice of Polish citizens as against
other foreigners which was prohibited. Poland there-fore has been claiming
with equal insistence that the prohibition covered discrimination as
compared with Danzig citizens.
[151] It is true that in many cases absence of discrimination will result in
national treatment or equal treatment (�galit� de traitement) but not in
all. It will only do so in the domain which is covered by the word
"traitement". "�galit� de traitement" does not imply equality of status.
Even where "'�galit� de traitement" occurred, it would not mean that all
differences would be swept away at Danzig between Polish citizens and Danzig
citizens.
[152] The stipulation which the Court has to interpret is that of a
prohibition of discrimination; that is all that under Article 104 (5) of the
Treaty of Versailles and under Article 33 (1), second sentence, of the
Convention of Paris Poland is entitled to claim. She is entitled to claim it
whether it does or does not result in equality of treatment. If in fact -
and the existence of discrimination is a question of fact - there is no
discrimination, Poland can have under the above treaties no claim to equal
treatment. If in fact, in respect of any particular matter, absence of
discrimination would result in equal treatment, equal treatment will be what
she is entitled to claim for her citizens, but the basis of the claim will
be that some inequality of which she complains is the result of
discrimination.
[153] Exaggerated attention has been devoted in the pleadings and arguments
to the notes of November 5th and 6th, 1920, between the Danzig delegation
and the Conference of Ambassadors. It appears] that, when the terms of
Article 33 of the Convention of Paris became known at Danzig, they led to
some suggestions by ill-informed persons in the Constituent Assembly that
the effect would be to give Polish citizens at Danzig political rights in
the Free City, and the Danzig delegation asked the Conference of Ambassadors
if this view was correct. The Conference of Ambassadors very properly
replied that it was not correct. Why it should be [p52] assumed on the one
side that in putting the question the Danzig delegation must have approached
the subject on the basis that equality of rights was to exist in every other
respect, and on the other side that the acceptance by Poland of the ruling
that her citizens at Danzig were not to be entitled to political rights
should vitiate her whole claim is not apparent. Both conclusions appear to
be equally ill-founded. Political rights (e.g. the right to vote and the
right to be elected) are rights which normally are reserved to nationals,
and are so reserved at Danzig. An absence of discrimination at Danzig to the
prejudice of Poles - even if it leads in many cases, perhaps in most cases,
to equality of treatment - cannot convert those of the Poles who are
foreigners into Danzig citizens.
[154] The important point is that the discrimination to the prejudice of
Polish citizens which is prohibited by Article 104 (5) of the Treaty of
Versailles and Article 33 (1) of the Paris Convention covers discrimination
to their prejudice as compared with Danzig citizens, and is not limited to
discrimination to their prejudice as compared with other foreigners.
Consequently, where absence of discrimination results in equality of
treatment, it is equality as between Polish citizens and Danzig citizens,
and not only as between Polish citizens and other foreigners.
II.
[155] In the second of the questions on which the opinion of the Court is
asked, the Court is required to state what is the exact interpretation of
Article 104 (5) of the Treaty of Versailles and of Article 33 (1) of the
Convention of Paris. As the present dispute has arisen out of the question
of the treatment of Polish nationals and persons of Polish origin and speech
at Danzig, I should myself have assumed that what the Council desired was an
interpretation of the sentence to be found in paragraph 5 of Article 104 and
repeated in Article 33 of the Convention of Paris: "to provide against [p53]
any discrimination within the Free City of Danzig to the detriment of
citizens of Poland and other persons of Polish origin or speech". The
Opinion of the Court deals however also with the meaning and effect of the
introductory words at the beginning of Article 104, which provide for the
negotiation by the Principal Allied Powers of the Convention subsequently
concluded at Paris on November 9th, and also with the question of the extent
to which Article 104 (5) is, apart from Article 33 of the Convention of
Paris, binding upon the Free City.
[156] As the Opinion of the Court arrives at the conclusion that Article 104
(5) of the Treaty of Versailles is made binding on the Free City by virtue
of its reproduction in Article 33 of the Convention of Paris, I doubt
whether the above parts of the Opinion dealing with the questions indicated
in the preceding paragraph are essential, but I feel bound to refer to them
because I do not think that I can accept - in full the statements they
contain.
[157] The Opinion says that the objects of the proposed treaty set out in
Article] 104 are merely general principles, and that these had to be
delimited by more precise terms in a future treaty. This conclusion is in
part deduced from the fact that on May 5th, 1920, the Conference of
Ambassadors described Articles 102 to 107 of the Treaty as setting out the
"grandes lignes" of the r�gime at Danzig, and in part from the fact that
Article 104 contains a mandate given by the signatories of the Treaty and
accepted by the Principal Allied and Associated Powers to negotiate a treaty
with the objects there set out.
[158] It is clear that the introductory words of Article 104 exclude all
doubt as to the right and the duty of the Principal Allied and Associated
Powers to negotiate the terms of the proposed treaty between Danzig and
Poland, but Article 104 of the Treaty of Versailles has a more far-reaching
effect than the Opinion of the Court suggests.
[159] The sovereignty over the Danzig territory was ceded by Germany in the
Treaty of Versailles to the Principal Allied and Associated Powers. It was
they who by Article 102 [p54] agreed to establish Danzig as a Free City
under the protection of the League of Nations and with a Constitution
guaranteed by the League (Art. 103). By Article 104 a convention between
Poland and Danzig was to come into force at the moment that the Free City
came into being with certain specified objects, and the Principal Allied and
Associated Powers undertook to negotiate this convention. The pledge given
by the Principal Allied and Associated Powers is not a mandate in any
ordinary sense of that term. They received no charge from some higher
authority to negotiate a treaty. What Articles 102, 103 and 104 do is to set
out the terms and conditions on which Danzig was to be brought into being by
the new sovereigns of the territory. One of these conditions was that, from
the moment when she came into being, the Free City was to be subject to
certain guarantees in favour of Poland which were to be embodied in a
treaty; consequently, subjection to these treaty stipulations is one of the
conditions of the Free City's existence.
[160] When the Principal Allied and Associated Powers, by the instruments
which they signed on October 27th, established the Free City of Danzig "upon
the terms and conditions laid down in the said Treaty", and when the Free
City accepted the provisions of this instrument, the result was that the
Free City by its representatives assented to the establishment of the Free
City on the terms set out in the Treaty of Versailles, including the
condition that there should exist a treaty fulfilling the purposes specified
in Article 104.
[161] Article 104 is therefore not a mere transitory or ephemeral provision
which passed out of existence when the new convention was concluded. It is
much more. Its paragraphs constitute, as they were described by Viscount
Ishii in his report of November 17th, 1920, "the restrictions limiting the
political independence of the Free City which are the outcome of the Treaty
of Versailles".
[162] As between Poland and Danzig, it is no doubt to the Convention of
Paris that the Parties would appeal in the first case to establish their
rights, but it is equally clear that the paragraphs of Article 104,
including paragraph 5,were intended [p55] to remain in operation. No clearer
proof of this can be found than the Constitution of Danzig itself, which as
regards matters on which Poland was to enjoy certain rights and attributions
- such as the conduct of the foreign affairs of the Free City - makes
reference not to the Convention of Paris but to the Treaty of Versailles;
see, for instance, Article 41: "The Senate shall represent the Free City of
Danzig in so far as this is not contradictory to the stipulations providing
for the conduct of the foreign relations of the Free City of Danzig by the
Polish Government in accordance with Article 104, paragraph 6, of the Treaty
of Peace of Versailles."
[163] Reference is made in the Opinion of the Court to a report adopted by
the Council of the League on July 7th, 1923, as to the relations between the
Treaty of Versailles and the Convention of Paris, but the extract which is
quoted is quite consistent with what is said above. The adoption and the
contents of this report were the outcome of a dispute in which Poland
maintained that she could ignore the Convention of Paris in case there was
any divergence between it and the Treaty of Versailles (see Official
Journal, August 1923, p. 884, July 4th). This was a view which, not
unnaturally, the Council was not disposed to uphold.
[164] The report of Viscount Ishii referred to above shows that, when
considering whether it should place the Constitution of Danzig under the
guarantee of the League of Nations, the Council considered that the Free
City was bound by the Treaty of Versailles. The report mentions the need of
ensuring (at Danzig) "a government which will carry out its duties in
accordance with the principles on which the Free City has been constituted
and likewise the obligations which have been imposed upon it by the Peace
Treaty of Versailles".
[165] It is equally clear that the Council determined its attitude to the
Constitution upon the basis that for Poland also the relevant part of the
Treaty of Versailles remained in force, as the preceding, paragraph of the
report says: "It is of course understood that it [the Free City] would
accept in their entirety the terms of the Treaty of Versailles and the
rights which this Treaty confers upon Poland." [p56]
[166] I have felt it necessary to express my view on this point because of
the importance of the question, though the sentence on page 33 of the
Opinion of the Court: "The conclusion of the Convention does not in any way
impair : the legal value of Article 104 of the Treaty as an authentic
expression of the mandate conferred on the Principal Allied and Associated
Powers and of the objects of the Convention; from this point of view and to
this extent the article is enforceable in respect of the Free City", makes
me feel that my view differs in no fundamental respect from that set out in
the Opinion of the Court.
[167] It seems to me improbable that, when the Council of the League asked
the Court for an opinion .as to the interpretation of Article 104 (5), it
had in mind more than the words in paragraph 5 itself, as these are the
words which are repeated in Article 33 of the Convention of Paris and to
which the phrase is added: "in accordance with Article 104, paragraph 5, of
the Treaty of Versailles". Certainly in Article 33 the words "Article 104
(5)" can have no reference to the so-called "mandate" of the Powers, for the
article would not make sense if it meant "to provide against any
discrimination .... in accordance with the mandate conferred upon the Powers
to negotiate a treaty with the objects of....". This confirms my view that
the question of the relation between the Treaty of Versailles and the
Convention of Paris is not relevant to the interpretation of paragraph 5 of
Article 104 of the Treaty of Versailles and to that of Article 33 of the
Convention of Paris.
III.
[168] With regard to the interpretation of Article 33 of the Convention of
Paris, the Opinion of the Court arrives at the conclusion, page 40, that the
article embodies two undertakings. With that view I agree. But when the
article is divided so as to distinguish the two undertakings, the text
becomes so clear that a reference to the "travaux pr�paratoires" of the
Convention seems scarcely justifiable.
[169] The first undertaking of the Free City is to apply to "minorities" in
Danzig provisions similar to those applied [p57] in Poland under Chapter I
of the Minorities Treaty of 1919. The only doubt here is as to whether this
undertaking obliges the Free City to assure to Polish nationals, as well as
to the rest of the inhabitants, the full and complete protection of life and
liberty and the free exercise of their religion provided for by Article 2.
The doubt is due to the question whether the word "minorities" includes
foreigners. As the Constitution of Danzig assures greater rights to all the
inhabitants than those provided for in Article 2, and as it is agreed that
the guarantee of the Constitution by the League of Nations implies that the
constitutional life of Danzig must always be in accordance with the terms of
the Constitution, the question whether Poland is entitled to claim on behalf
of her nationals at Danzig the benefit of Article 2 is only of theoretical
interest.
[170] The second undertaking in Article 33 is a repetition, with certain
unimportant variations in language, of the rule laid down in paragraph 5 of
Article 104 of the Treaty of Versailles. The result is that the sentence
embodies a reaffirmation of the non-discrimination principle, but with the
difference that it now becomes a direct treaty obligation of the Free City,
and not merely a condition of the Free City's existence resulting from the
establishment of the Free City on the terms and conditions laid down in the
Treaty of Versailles.
[171] The variations in the wording between the phrase as to
non-discrimination in Article 33 and in paragraph 5 of Article 104 are
unimportant. As regards the duties of the Free City, the obligations under
the one are the same as under the other, no more, no less. Once more, so far
as absence of discrimination results in equality of treatment, Poland is
entitled to claim such equality at Danzig for her citizens and also for
Poles by origin or language, but the existence of discrimination - a fact to
be proved - must be the basis of the claim.
[172] As I have said above, the text of Article 33 is to me so clear that I
should hesitate to refer to the "travaux pr�paratoires", but the history of
the article is interesting. [p58] There is one fact which is to me of
considerable importance which is not mentioned in the passages in the
Opinion of the Court dealing with the drafting of this article. It emerges
only in another part of the Opinion.
[173] As is stated in the Opinion of the Court, when the Conference of
Ambassadors got to work on the text of the Convention of Paris, it had
before it drafts prepared by both delegations dealing with the matters
covered by Article 104 (5) of the Treaty of Versailles. The draft prepared
by the Conference took but small account of the drafts submitted by the two
delegations. Article 30 as it figured in the Conference drafts of October
16th and 20th did no more for Poles at Danzig than give them the benefit of
Chapter I of the Minorities Treaty of 1919. It is also clear from their
letter of October 20th and from the text of the article itself that the
Conference of Ambassadors thought that this was all that was necessary to
give effect to Article 104 (5) of the Treaty of Versailles. The point that
is not made clear in the Opinion of the Court is that Poland refused to
accept this draft. Her refusal is only mentioned incidentally at page 15.
Poland proposed and obtained amendments, and one of those amendments was
important. It was the suppression of the words "� l'effet de" between the
two sentences of which the draft paragraph was composed. The effect of the
suppression was to convert the concluding part of the paragraph into a
substantive engagement instead of a mere explanation of the first part.
There can have been no concealment about the change, for in the draft which
the Danzig delegation set out in their note of November 5th, the word "et"
appears between the two sentences, and this makes the conversion of the
draft paragraph into two separate undertakings clearer than it is in the
text of Article 33 as signed.
[174] It is conceivable that, in the haste and pressure of the negotiations
at Paris, the importance of the change was insufficiently realized. At
Geneva it was rightly regarded as a change which did not affect the League
(see Viscount Ishii's report). But the text was in fact amended, and it is
the text as amended which the Court is asked to interpret and which the High
Commissioner must apply in deciding [p59] disputes between Danzig and
Poland. The effect of the change is that Poland is entitled to claim as
against Danzig under Article 33 all the rights assured to her by Article 104
(5) of the Treaty of Versailles.
(Signed) Cecil J. B. Hurst.
[p60] Annex.
I. - Documents and Papers Transmitted by the Organs of the League Of Nations
:
I. - Report on the question of the treatment of Polish nationals and other
persons of Polish origin or speech at Danzig, presented to the Council of
the League of Nations by the representative of Great Britain (Document С
388. 1931. I) (in French and English).
2. - Letter from the High Commissioner of the League of Nations at Danzig to
the Secretary-General of the League of Nations (March 31st 1931) (in French,
with English translation) and the following appendices:
Covering letter from the Polish diplomatic representative at Danzig to the
High Commissioner (March 26th, 1931).
Polish memorandum (March 26th, 1931).
Covering letter from the President of the Senate of the Free City to the
High Commissioner (March 26th, 1931)
Danzig memorandum (March 26th, 1931).
3. - Extract from the minutes of the 63rd Session of the Council of the
League of Nations, 5th meeting, May 22nd, 1931.
4. - Extract (No. 58) from Official Journal of the League of Nations,
December Number, 1930: Constitution of the Free City of Danzig.
5. - A volume containing the authentic Polish text and the revised and
corrected French text of the Memorials submitted to the High Commissioner of
the League of Nations at Danzig on the prejudicial treatment of Polish
nationals and other persons of Polish origin or speech at Danzig (Danzig,
1931). (Cf. Appendices to No. 2.)
The Court had also before it the Decision concerning Danzig approved by the
Supreme Council on July nth, 1920 (Zbi�r dokument�w urzedowych dotyczacych
stosunku Wolnego Miasta Gdanska do Rzeczypospolitej Polskiej-Collection of
official documents concerning the relations between the Free City of Danzig
and the Polish Republic), as also the report submitted to the Council of the
League of Nations on July 7th, 1923, by M. Quinones de Leon (League of
Nations Document С 468. 1923).
II. - Documents And Papers Submitted On Behalf Of The Polish Government:
A. - During the written procedure:
1. - Letter, dated October 20th, 1920, from the President of the Conference
of Ambassadors to the Secretary-General of the League of Nations.
2. - Extract from the minutes of the 10th Session of the Council held at
Brussels from October 20th,to 28th, 1920 (Annex 122 b). (Note concerning the
draft Constitution of the Free City of Danzig from the point of view of the
Treaty of Versailles.)
3. - Letter, dated November 5th, 1920, from the Danzig delegation to the
President of the Conference of Ambassadors.
4. - Letter, dated November 6th, 1920, from the President of the Conference
of Ambassadors to the President of the Danzig delegation.
5 - Law of March 31st, 1925, concerning the official language of the courts.
Public Prosecutor's Department and notaries in the districts of the Courts
of Appeal of Poznan and Torun. [p61]
B. - During the oral procedure:
1. - The Polish-Danzig Agreement of October 24th, 1921, known as the Warsaw
Agreement (Polish and German texts).
2. - Collection containing the following documents, in French:
(a) Point 13 of President Wilson's speech to Congress at Washington on
January 8th, 1918.
(b) Note, dated June 16th, 1919, from the President of the Peace Conference
to the President of the German delegation.
(c) Extract from the Treaty of Peace signed at Versailles on June 28th, 1919
(Art. 100-108).
(d) Resolution and Memorandum adopted by the Council of the League of
Nations on February 13th, 1920.
(e) Letter, dated October 20th, 1920, from the President of the Conference
of Ambassadors to the Secretary-General of the League of Nations.
(f) Convention between Poland and the Free City of Danzig, concluded at
Paris on November 9th, 1920.
(g) Report submitted to the Council of the League of Nations by H.E.
Viscount Ishii on November 17th, 1920.
(h) Resolution adopted by the Council of the League of Nations on November
17th, 1920.
(i) Extract from the Minutes of the 10th Session of the Council held at
Brussels from October 20th to 28th, 1920; note concerning the draft
Constitution of the Free City of Danzig from the point of view of the Treaty
of Versailles.
(j) Constitution of the Free City of Danzig.
(k) Extract from the Treaty of Warsaw, concluded between Poland and
Czechoslovakia on April 23rd, 1925 (Art. 11).
(l) Letter, dated March 8th. 1922, from the President of the Senate of the
Free City of Danzig to the Commission for the Allocation of State property.
(m) Extract from the Treaty between the Principal Allied and Associated
Powers and Poland, signed on June 28th, 1919 (Minorities Treaty),
(n) Letter, dated June 24th, 1919, from M. Clemenceau, President of the
Peace Conference, to M. Paderewski, Prime Minister of the Polish Republic.
(o) Letter, dated November 5th, 1920, from the Danzig delegation to the
Conference of Ambassadors.
(p) Letter, dated November 6th, 1920, from the President of the Conference
of Ambassadors to the President of the Danzig delegation.
(q) Extract from the law of March 31st, 1925, on the official language of
the courts, of the Public Prosecutor's Department and of notaries in the
districts of the Appeal Courts of Poznan and Torun.
(r) Decision of the High Commissioner of the League of Nations, dated
December 17th, 1921.
(s) Report submitted to the Council of the League of Nations by M. Adatci on
May 17th, 1922.
(t) Extract from the report of M. Quinones de Leon and from the Resolution
adopted by the Council on September 1st, 1923.
(u) Protocol drawn up at Warsaw on February 8th, 1930, regarding the
increase of unemployment in the Danzig labour market.
(v) Decree of the Reich Minister of Labour, dated January 31st, 1931,
concerning emergency relief for unemployed persons of Danzig nationality.
(w) Letter, dated September 18th, 1931, from the Senate of the Free City of
Danzig to the Diplomatic Representative of the Polish Republic at Danzig.
(x) Request, dated May 9th, 1931, from the Government of the Free City of
Danzig, to the High Commissioner of the League of Nations at Danzig. [p62]
3. - Letter from the Secretary-General of the Conference of Ambassadors to
the Polish delegation (October 16th, 1920).
4. - Translation of Articles 229, 234 and 241 of the Warsaw Agreement
(October 24th, 1921).
5. - Extract from the statistics of primary public and private schools, etc.
(1930-1931).
6. - Extract from the statistics of high schools, etc. (1930-1931). 7. -
Extracts from the Gesetzblatt f�r die Freie Stadt Danzig:
I. - Gesetz �ber den Gebrauch der polnischen Sprache bei der Rechts-
pflege (11 x 22).
II. - Gesetz zur Verl�ngerung der Geltungsdauer iiber den Gebrauch der
polnischen Sprache bei der Rechtspflege vom 11. Oktober 1922 (5 ix 23).
III. - Gesetz betreffend den Unterricht der polnischen Minderheit (20 xu
21).
III. - Documents and Papers Filed on Behalf of the Senate of the Free City
of Danzig:
A. - During the written procedure :
1. - Official documents concerning the Convention of November 9th, 1920,
between the Free City of Danzig and. the Polish Republic; 1 vol., containing
inter alia:
(a) Articles 100 to 108 of the Treaty of Versailles.
(b) Text of the draft convention determining the mutual relations between
the Free City of Danzig and the Polish Republic, known as the first Polish
draft.
(c) Draft convention between the Free City of Danzig and the PolishRepublic,
in conformity with Article 104 of the Treaty of Versaillesof June 28th,
1919, known as the Danzig draft.
(d) Letter, dated Paris, September 20th, 1920, from the Polish delegation
tothe President of the Peace Conference at Paris, with a draft treaty.
(e) Draft convention determining the mutual relations between the Free City
of Danzig and the Polish Republic, known as the second Polish. draft.
(f) Note from the Danzig delegation to the Conference of Ambassadors
concerning the sovereignty of the Free City of Danzig (October 8th, 1920).
(g) Letter from the Conference of Ambassadors to the Danzig delegation with
a draft treaty (October 16th, 1920) and the draft of a convention between
the Free City of Danzig and Poland, known as the draft of October 16th,
1920.
(h) Observations by the Danzig delegation on the draft treaty of the
Conference of Ambassadors (October 18th, 1920).
(i) Letter from the Conference of Ambassadors to the Danzig delegation,
together with a new draft of the Danzig-Polish Treaty (Paris, Octo�ber 20th,
1920), and the draft of a convention between the Free City and Poland, dated
October 19th, 1920.
(j) Letter from the Peace Conference to the Danzig delegation concerning
amendments to the Danzig-Polish draft treaty (Paris, October 22nd, 1920).
(k) Letter from the Danzig delegation to the Conference of Ambassadors
concerning the signature of the Danzig-Polish Convention (October 22nd,
1920). [p63]
(l) Letter from the Danzig delegation to the Conference of Ambassadors
concerning the refusal to enter into further negotiations on the text of the
Danzig-Polish Convention (October 24th, 1920).
(m) Letter from the Conference of Ambassadors to the Danzig delegation on
the amendments to the Danzig-Polish draft treaty (Paris, October 28th,
1920).
(n) Final text of the Treaty between the Free City of Danzig and Poland,
signed at Paris on November 9th, 1920, in execution of Article 104 of the
Treaty of Versailles.
2. - Danzig-Polish Agreement of October 24th, 1921, known as the Warsaw
Agreement; 1 vol. (Polish and German texts).
3. - Collection of treaties, agreements and arrangements between the Free
City of Danzig and the Polish Republic (1920-1927); 2 vol. (German and
Polish texts).
4. - Decisions of the High Commissioner (1921-1927) (English and German, or
French and German texts).
5. - Collection of documents, containing the following texts in French and
in English:
1. Application of the Polish Government of September 30th, 1930, for a
decision in accordance with Article 39 of the Danzig-Polish Treaty of Paris
of November 9th, 1920, regarding the unfavourable treatment of Polish
nationals and other persons of Polish origin or Polish speech in the
Territory of the Free City of Danzig.
2. Reply of the Government of the Free City of Danzig of December3rd, 1930,
to the Polish claim of September 30th, 1930, with regard to Article 33 of
the Treaty of Paris of November 9th, 1920.
3. Reply of the Polish Government of January 29th, 1931, regarding the
alleged unfavourable treatment of Polish nationals and other persons of
Polish origin or Polish speech in the Territory of the Free City of Danzig.
4. Second Reply of the Government of the Free City of Danzig of March 25th,
1931, regarding general legal arguments to the Minorities problem, and in
particular to Article 33 of the Treaty of Paris of November 9th, 1920.
5. Second Reply of the Government of the Free City of Danzig of May 5th,
1931, regarding special arguments to the Minorities problem, in particular
to Article 33 of the Treaty of Paris of November 9th, 1920.
6. Memorandum by the Government of the Free City of Danzig of March 26th,
1931, concerning the legal question.
7. Memorandum by the Polish Government of March 26th, 1931, concerning the
legal question, with a letter of the High Commissioner of March 31st, 1931,
to the Secretary-General of the League of Nations in order to obtain an
advisory opinion from the Permanent Court of International Justice.
B. - During the oral procedure the attention of the Court was drawn
to the following documents:
1. Danzig law, dated October 11th, 1922, concerning the use of the Polish
language in the courts.
2. Danzig law, dated September 5th, 1923, in regard to the prolongation of
the law of October nth, 1922, concerning the use of the Polish language.
3. Danzig law, dated December 20th, 1921, concerning the education of the
Polish minority.
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