SERIE B. No 6

RECUEIL DES
AVIS CONSULTATIFS

PUBLICATIONS
DE LA COUR PERMANENTE DE JUSTICE INTERNATIONALE

Avis consultatif donné par la Cour à la date
du 10 septembre 1923 au sujet de certaines

. questions touchant les colons d’origine alle-
mande, dans les territoires cédés par l’Alle-
magne à la Pologne.

COLLECTION OF
ADVISORY OPINIONS

| PUBLICATIONS
OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE

Advisory opinion given by the Court on
September 10 1923 on certain questions
relating to settlers of German origin in the
territory ceded by Germany to Poland.

LEYDE
SOCIETE D’EDITIONS
A.W. SIJTHOFF
1923

LEYDEN
A. W. SNTHOFFS
PUBLISHING COMPANY
1923

PERMANENT COURT OF INTERNATIONAL
JUSTICE.

1923.
Sept. 10th
File F. ce. VI
Docket IIT. 2

THIRD ORDINARY SESSION

Present :

MM. Lover, President,
Weiss, Vice-President,
Lord FIN Lay,
MM. NyHorw,
Moore,
DE BUSTAMANTE,
ALTAMIRA,
ODA,
ANZILOTTI,
HUBER,

M Wane, Deputy- Judge.

Judges,

ADVISORY OPINION No. 6.

The Council of the League of Nations on February 3rd,
1923, adopted the following Resolution:

The Council of the League of Nations having been
apprised of certain questions regarding the following facts :

(a) a number of colonists who were formerly German
nationals, and who are now domiciled in Polish territory
previously belonging to Germany, have acquired Polish
nationality, particularly in virtue of Article 91 of the
Treaty of Versailles. They are occupying their holdings
under contracts (Rentengutsverträge) which although
concluded with the German Colonization Commission
prior to the Armistice of November 11th, 1018, did not
receive an ‘“‘Auflassung”’ before that date. The Polish
Government regards itself as the legitimate owner of
these holdings under Article 256 of the Treaty of Ver-
sailles, and considers itself entitled to cancel the above
7

contracts. In consequence, the Polish authorities have
taken certain measures in regard to these colonists by
which the latter will be expelled from the holdings which
they occupy ;

_ (b) the Polish authorities will not recognize leases
conceded before November 11th, 1918, by the German
Government to German nationals who have now become
Polish subjects. These are leases over German State .
properties which have subsequently been transferred to
the Polish State in virtue of the Treaty of Versailles, in
particular of Article 256,

Requests the Permanent Court of Internaiional Justice
to give an advisory opinion on the following questions:

(1) Do the points referred to in (a) and (b) above
involve international obligations of the kind contemp-
lated by the Treaty between the United States of
America, the British Empire, France, Italy, Japan and
Poland, signed at Versailles on June 28th, 1919, and
do these points come within the competence of the
League of Nations as defined in that Treaty?

(2) Should the first question be answered in the affir-
mative, the Council requests the Court to give an advisory
opinion on the question whether the position adopted

by the Polish Government, and referred to in (a) and (b)
above, is in conformity with its international obligations.

The Secretary-General is authorized to submit this |
request to the Court, together with all the relevant
documents, to explain to the Court the action taken by
the Council in this matter, to give all assistance necessary
in the examination of the question, and, if required, to
take steps to be represented before the Court.

On March 2nd, 1923, the Secretary-General of the League,
by virtue of this Resolution, sent to the Permanent Court
of International Justice the following request:
8

The Secretary-General of the League of Nations,
In pursuance of the Resolution adopted by the Council on
February 3rd, 1923, a certified copy of which is attached
to this communication,

And in virtue of the authority conferred upon him —
by that Resolution,

Has the honour to submit to the Permanent Court of
International Justice an application from the Council
requesting the Court in accordance with Article 14 of
the Covenant, to give an advisory opinion on the ques-
tions which have been referred to it by the above-
mentioned Resolution of February 3rd, 1923.

The Secretar y-General is also instructed by the Council
to attach to this communication a note explaining the
action taken by the Council in the matter, together with .
copies of such documents relative to the points under
discussion as have at present been commun icated to the
Members of the Council.

In accordance with the aforesaid Resolution of the
Council, the Secretary-General will be prepared to fur-
nish any assistance which the Court may require in the
examination of the question, and he will, if necessary,
arrange to be represented before the Court.

By a letter of April 26th, 1923, the Secretary-General of
the League of Nations informed the Court that the Council
of the League had, on April 18th, decided to transmit to the
Court a report which had been submitted to it on the subject
of the interpretation of paragraph (b) of the Resolution of
February 3rd, and that the Council had approved this report,
which is as follows:

By a Resolution dated February 3rd, 1923, the Coun-
cil decided to ask the Permanent Court of International
Justice for an advisory opinion concerning certain points
in regard to the German Minorities question in Poland.

In a letter dated March 22nd, distributed to the Mem-
bers of the Council (Doc. C. 272, 1923 V) the Polish Govern-
9

ment expressed a desire that the sense and bearing of
paragraph (b) in this resolution should be confirmed in
order that this latter point might be stated with the
absolute clearness Prescribed by Article 72 of the Rules
of the Court.

All that is required is a statement that paragraph (b)
refers exclusively to the case of a special category of
colonist farmers, namely those who occupy holdings in
virtue of leases contracted before the Armistice and still
unexpired, and who subsequently obtained after the
Armistice amortization contracts (Rentengutsvertrage)
for these holdings.

As this was clearly the intention of the Council when
it took its decision on February 3rd, I venture to propose
that my colleagues should signify their agreement with
the Polish conclusions. If this proposal is accepted, the
Secretary-General would then forward to the Polish
Government and to the Permanent Court of International
Justice copies of the present report, as confirmed by the
Council. The text of the Polish letter dated March
2and, 1923, would also be communicated to the Court.

In conformity with Article 73 of the Rules of Court, notice
of the request for an advisory opinion was given to the Mem-
bers of the League of Nations, through the Secretary-General
of the League, and to the States mentioned in the Annex

to

the Covenant. Furthermore, the Registrai of the Court

was directed to notify the German Government of the request.

Together with the request were transmitted a certain num-

ber of documents (1).

(@)1. Account ofthe action taken by the Council of the League of Nations in the

2.

wo

matter.

Note by the Secretary-General of the League of Nations to the Members of the
Council, dated November 9th, 1921.

Appendix : Telegram from the “Deutschtumsbund” to the League of Nations,
dated November 8th, 1921.

. Note by the Secretary-General of the League of Nations to the Members of

the Council, dated November 14th, 1921.

Appendix : Letter from the Polish ‘Delegate to the League of Nations. to
the Secretary-General, dated November 13th, 1921.

Sh Ton. this Appendix: Extract from the » Berliner Tageblatt” of November
14

. Note by the Secretary-General of the League of Nations to the Members

of the Council, dated November 15th, 1921.
Appendix : Memorandum from the “Deutschtumsbund” to the Council of
the League of Nations, dated November 7th, 1921.
a

“1

©

17.

18.

19.

20.
21.

10
Further documents were obtained from the Secretariat ‘of

Annex to this Appendix: Law of July 14th, 1920 referring to property
rights of German States. -

Note by the Secretary-General of the League of Nations to the Members
of the League, dated November 26th, 1921. .
Appendix: Telegram from M. Askenazy to the. Secretary-General, dated
November 18th, 1921.

. Note by the Secretary-General of the League of Nations to the Members

of the Council, dated November 28th, 1921.

Appendix: Note sent by the ‘“Deutschtumsbund” to the Council of the
League of Nations, dated November 12th, 1921.

Annex to this Appendia: Petition from Germans domiciled in Poland to
the Council of the League of Nations, dated November 12th, 1921.

. Note by the Secretary-General of the League of Nations to the Members

of the League, dated November 21st, 1921.

. Note by the Secretary-General of the League of Nations to the Members

of the League, dated January 23rd, 1922.

Appendix IT: Report by MM. Hymans, Imperiali and Ishii, Members of
a Committee of the Council formed to consider certain petitions from
German Minorities in Poland. :

Appendix II : Letter dated January 17th, 1922 from the Polish Delegate
to the League of Nations to the Director of the Minorities Section.
Note by the Secretary-General of the League of Nations to the Members
of the Council, dated February 13th, 1922.

Appendix: Letter from the Polish Delegate to the League of Nations
to the Secretary-General, dated January 26th, 1922.

Annex I to this Appendia: Articles 113 and 115 of the Polish Constitution.
Annex II to this Appendix: Article 91 of the Treaty of Versailles.

prepare to the Council by MM. Hymans, Imperiali and Ishii, dated March
rd, 1 .

. Extract from the Minutes of the 5th Sitting of the 17th Session of the

Council, dated March 28th, 1922.

. Report by MM. Hymans, Imperiali and Adatci, dated May 17th, 1922.
. Extract from the Minutes of the 11th and 12th Sittings of the 18th Ses-

sion of the Council, (May 17th, 1922).

Note by the Secretary-General of the League of Nations to the Members
of the League, dated July 27th, 1922.

Appendix: Letter from the Polish Foreign Minister to the President of
the Council of the League of Nations, dated July 3rd, 1922.

. Extract from the Minutes of the 7th Sitting of the 19th Session of the

Council, (July 20th, 1922).

. Note by the Secretary-General of the League of Nations to the Members

of the League, dated August 29th, 1922.
Appendix: Letter from M. Askenazy, to the Secretary General of the
League of Nations, dated July 5th, 1922.
Annex to this Appendix : Information regarding the questions mentioned in
the Resolution of the Council of the League of Nations, of May 17th, 1922.
Note by .the Secretary-General of the League of Nations to. the Members
of the League, dated September 2nd, 1922.
Appendix: Letter from the Polish Delegate to the League of Nations to
the Secretary-General, dated August 30th, 1922.
Note by the Secretary-General of the League of Nations to the Members
of the Council, dated September 2nd, 1922.
Appendix: Memorandum from the “Deutschtumsbund’”’ to the Council of
the League, dated August Ist, 1922. .
Annexes to this Appendix:

1. Legal position of settlers under the Minorities Treaty of June 28th,

191

. Question put by Deputies Spiekermann, etc. to the Polish Prime
Minister. .
. Reply by the Minister, M. Dunikowski to No. 2.
. Question put to the Polish Government by Deputy Daczko with
regard to the refusal of the Auflassung for certain properties.
. Question put by Deputy Daczko and others with regard to the violation
of parental rights.
6. Decree regarding the revision of permission granted for conducting
. private schools.
Note by the Secretary-General of the League of Nations to the Members
of the Council, dated September 6th, 1922.
Appendix: Letter from M. Askenazy to the Director of the Minorities
Section, dated September 4th, 1922.
Report by M. da Gama and Resolution adopted by the Council on Sep-
tember 9th, 1922.
Extract from. the Minutes of the 6th Sitting of the 21st Session of the
Council of the League of Nations, September 9th, 1922.

oO HO D
II

the League of Nations at the request of the President of the
Court (1).

22. Report by M. da Gama and Resolution adopted by the Council of the
League of Nations, September 30th, 1922.

23. Extract from the Minutes of the 16th Sitting of the 21st Session of the
Council of the League of Nations, September 30th, 1922.

24, Note by the Secretary General of’ the League of Nations to the Members
of the League, dated September 28th, 1922.
Appendix I: Note from the Polish Minister for Foreign Affairs to the
President of the Council of the League of Nations, dated December 7th,

Annex to this Appendix; . Memorandum concerning the questions dealt
with in the report of H. E. M. da Gama, of September 30th, 1922.
Appendix II: Telegram from the ‘Deutschtumsbund” to the~ League of
Nations, dated. September 30th, 1922.

Appendix III: Letter from the ‘“Deutschtumsbund” to the Council of the
League of Nations, dated November 13th, 1922.
Annexes to this Appendix : :
(a) Notice from the District Land Office in Posen to M. Ernst Milke.
(b) List of 30 colonists evicted by the Land Commissioner.
Appendix IV; Letter from the Polish Delegate to the League of Nations
to the Director of the Minorities Section, dated December 13th, 1922.
Appendix V: Report by M. da Gama.
Appendix VI: Opinion of the Jurists Committee, September 26th, 1922.

25. Note by the Secretary-General of the League of Nations to the Members

of the League, dated January 3ist, 1923.

Appendix : “Letter from the Polish Delegate to the League of Nations to

the Secretary General, dated January 23rd, 1923.

26. Report by M. da Gama and Resolution adopted by the Council on
February 3rd, 1923.

27. Extract from the Minutes of the 10th Sitting of the 2ist Session of the
Council, February 2nd, 1923.

28. Extract from the Minutes of the 13th Sitting of ‘the 23rd Session of the

Council, February .3rd, 1923.

© Further documents supplied at the request of the President of the Court
. Specimen of a Rentengutsvertrag.

2 Specimen of a Pachtvertrag.

3. Letters gent by the President of the Conference of Ambassadors to the
diplomatic representatives of Germany and Poland at Paris.

(a) To the Polish Minister; November 29th, 1921 ;

(b) To the Polish Minister; December 16th, 1921 ;

{c) To the German Ambassador ; December 16th. 1921;

(d) To the German Ambassador, "February 18th, 1922.

4, Judgment of the Supreme Court of Warsaw, given on June 9th, 1922.

5. Note by the Secretary-General of the League of Nations to the Members
of the Council, transmitting a Note addressed by the Reparations Commis-
sion to the League of Nations, dated August 24th, 1921.

6. Note by the Secretary-General of the League of Nations to the Members
of the League transmitting a petition from the Union of German Farmers
on the State domains in Poland, dated May 26th, 1921.

7. Petition sent by the Union of German Farmers on the State domains
in Poland to the “Conseil Supérieur’ at Paris.

Annex I: Proclamation addressed to Germans in Poland by the Committee
of the Supreme Council of Poland, June 30th, 1919.

Annex II: Letters from the Union of Tenants on the State domains to
the Voivodats of Posen and Thorn, dated February 22nd and March 12th, 1921.
ote toot! Letter from the same Union to the same Voivodats, April
10th

Annex IV: Extract from the Article ‘ Domain Lands in the Voivodat of Posen’.

Annex V: A list of 23 farmers related to or otherwise connected with officials
of the Domain lands.

Annex VI: Instructions of the Department for Polish Domain Lands to
Assessors and Directors.

Annex VII: The Polish-German Treaty of October 17th, 1919.

Annex VIII: Judgment of the Court of the District of Torun, given on
June i8th, 1921.

Annex IX: Judgment of the Court of the District. of Ostrowo, given on
September 10th, 1921.

Annee X: Judgment. of the Court of the District of Ostrowo given on
September 23rd, 1921.
12

Furthermore, the Court had before it a certain number of

documents transmitted to it on behalf of the Polish and of
the German Governments respectively (‘).

() 1. Letter from the Polish Minister at the Hague to the Registrar of the

11.

12,

13.

16.

Court, dated May 2nd, 1923, concerning the document entitled “account
of the action taken by the Council of the League of Nations regarding
certain questions concerning the protection of persons belonging to the
German Minority in Poland.”

. (a) Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated May 24th, 1923 (1 annex). Annex: Article by M. Kierski
entitled ‘The protection of Minorities’’. .

(b) Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June ist, 1923 (1 annex). Annex: Continuation of article
by M. Kierski. |

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated May 28th, 1923 (1 annex). Annex: Article by M. Winiarski,
entitled ‘The aims of the two Treaties of Versailles”.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated June 19th, 1923 (1 annex). Annex: Opinion by Professor
Bellot in the matter of the German Colonists in Poland.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated June 27th, 1923 (1 annex). Annex: Observations by Pro-
fessor Zoll with regard to the opinion of Professor Kaufmann.

. Letter from the Polish Minister at the Hague to the. Registrar of the

Court, dated June 6th, 1923 (1 annex). Annex: Observations by Pro-
fessor Zoll regarding the opinion of Professor Kipp.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated June 30th, 1923 (18 annexes). Annexes: 18 documents relat-
ing F2 the Prussian colonisation of that part of Poland formerly belonging
Oo russia.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated July ist, 1923 (1 annex). Annex: Opinion by M. Bronislas
Stelmachowski regarding the German Colonists.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated July 4th, 1923 (1 annex). Annex: Opinion by M. Waclaw
Komarnicki regarding the question of a certain category of German
Colonists in Poland.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court dated July 5th 1923 (1 annex). Annex: Opinion regarding the
competence of the League of Nations by M. Kierski published in the
““Kuryer Poznanski”.

Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 7th, 1923 (1 annex), Annex: “The political and
administrative regime in Prussian Poland” (Fribourg, Lausanne 1918).
Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 5th, 1923 (1 annex). Annex: Memorandum by Dr.
Wojtkowski entitled “The Policy of extermination adopted by the Prussian
Government with regard to the Poles (1740—1922).”

Letter frorn the Polish Minister at the Hague to the Registrar of the
Court, dated July 1ith, 1923 (1 annex). Annex: Observations by Profes-
sor Stanislas Kutrzeba in reply to the memorandum by Professor Erich
Kaufmann.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated July 13th, 1923 (annexes). Annexes: a certified true extract
taken from the Legal Gazette of the Polish Republic, No. 62, July 27th,
1920, giving the text of the law of July i4th, 1920, together with a
French translation of Articles 1, 2 and 5 of the said law.

. Letter from the Polish Minister at the Hague to the Registrar of the

Court, dated July 21st, 1923 (1 annex). Annex: legal opinion by M.
Limburg on the question of the German Minority in Poland.
Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated August 2nd, 1923 (1 annex, 4 sub-annexes). :
Annex — Observations of the ‘‘Prokuratorja Generalna” of the Polish
Republic with regard to the question of certain German Colonists in
Poland. ‘
Sub-annex (a) “Gesetze und Ausführungsbestimmungen für - die Ansied-
lungs Kommission’’.

{b} Typical “Rentengutsvertrag.”

(c) ‘“‘Pachtverträge.”

(d) Typical anti-Polish clauses.

. Map of the provinces of Posen and West Prussia showing the settle-

ment lands and settlements, and the State domains and forests.
13

The Court also heard, at the request of the Polish Govern-
ment, the statemerts of its representatives, Count Rostwo-
rowski, Professor at the University of Cracow, and Sir Ernest
Pollock, formerly Attorney-General of Great Britain. It
likewise heard M. Schiffer, former Minister of Justice of the
Reich, appointed by the German Government as its repre-
sentative for the purpose of giving explanations supplemen-
tary to those contained in the documents.

By the Treaty of Peace betweer the Allied and Associated
Powers and Germany, which was signed at Versailles on June
28th, 1919, and which came into force on January roth,
1920, Germany, in conformity with the action already taken
by the Allied and Associated Powers, recognized the complete
independence of Poland and renounced in her favour ail
right and title over certain territory which is described in
Article 87 and which includes the territory in which the ques-
tion now before the Court has arisen.

Article 256 of the Treaty contains the following provision.

Powers to which German territory is ceded shall
acquire all property and possessions situated therein
belonging to the German Empire or to the German
States, and the value of such acquisitions shall be fixed
by the Reparation Commission, and paid by the State
acquiring the territory to the Reparation Commission

18. Instructions from the Prussian Minister of Agriculture to the President
of the Settlements Commission regarding the acceleration of the “Auflas-
sung” for Settlement Holdings.

19. Instructions from the Minister of Finance to the Government of Posen
relating to the same subject.

20. Report of the Transvaal Concessions Commission, April 19th, 1901.

21. (a) Letter from the German Legation at the Hague to the Registrar,
dated June 28th, 1923 (2 annexes), —

Annex 1 — Memorandum by the German Government concerning the
question of the German Colonists and farmers in Poland (in German).
Annex 2 — Treatises on the doctrine of State Succession — Three opinions
by Sir Thomas Barclay, Dr. A. Struycken, and Dr. E. Kaufmann (in
German).

(b) Letter from the German Legation at the Hague to the Registrar,
dated July 21st, 1923 (annexes).

Annex 1— French translation of the memorandum of the German Govern-
ment mentioned above.

Annex 2 — French translation of the opinions mentioned under 21 (a)
annex 2 and of an opinion by Dr. T. Kipp.

Annex 3 — “The policy of the Kingdom of Prussia with respect to the
Polish inhabitants’ (in German) by Dr. L. Bernhard.

Annex 4— “Internal Colonisation in Prussia, etc” (in German) by Dr. F,
Toennies.
14

for the credit of the German Government on account
of the sums due for reparation.

“For the purposes of this Article the property and
possessions of the German Empire and States shall be
deemed to include all the property of the Crown, the
Empire or the States, and the private property of the
former German Emperor and other Royal personages.

On July 14th, 1920, a law was enacted in Poland, con-
taining, among others, the following articles :

ARTICLE I.

In all cases in which the Crown, the German Reich
the German States, the institutions of the Reich or
of the German States, the ex-Emperor of Germany or
other members of the German reigning houses, are, or
were, after November 11th, 1918, inscribed in the land
registers of the former Prussian provinces as owners
or possessors of real rights, the Polish Courts shall,
in accordance with the terms of the Treaty of Versailles
of June 28th, 1919, inscribe ex officio in such registers,
the Treasury of the Polish State, in place of the persons
or persons in law above mentioned.

ARTICLE 2.

Should one of the persons or persons in law referred
to in Article x, after November 11th, 1918, have alienated
or encumbered the immoveable property in question, or
if, after November 11th, 1918, a real right standing in
the name of the personalities enumerated in Article x
has been at their request, or with their consent, trans-
ferred, suppressed, or has undergone any other change,
the Courts shall restore the entry in the land register
as it would have been had the persons enumerated in
Article 1 not made such request or given the consent
necessary to effect the changes made in the land register.

If the Registry of Mortgages receives a declaration
of hypothec, or of a mortgage upon the estate or upon
the rent, and, if, and as soon as, it appears from the
15

contents of the declaration that any one of the persons
enumerated in Article x is the beneficiary under the hypo-
thec or mortgage, or was so after November 11th, 1938,
the Court in that case shall ex officio inscribe the Treasury
of the Polish State as such beneficiary under the hypothec
er mortgage. The provisions of paragraph I of this
Article with regard to the restoration of the previous
entries in the land registers, shall be applied in a similar
manner to the contents of these declarations.

ARTICLE 5.

The Treasury of the Polish State, inscribed in con-
formity with Article 1, as the owner of an immoveable
property, may demand the expulsion from that property
of persons who, on the basis of an agreement concluded
with one of the persons enumerated in Article 1, continue
in possession of such propetty after the coming into force
of this law.

In execution of this law, the Polish Government proceeded,
through the Courts, to oust the occupants of the land in
pursuance of notices served on them by the Polish authorities.
The occupants resisted the attempt to oust them, on theground
that this attempt constituted a violation of acquired 1ights
which they possessed under the law, and therefore an infrac-
tion of the Polish Minorities Treaty.

These occupants are to be divided into two classes : first,
those holding under contracts known as Rentenguisvertrdge,
entered into with the Prussian State acting through the
Settlement Commission for West Prussia and Posen; and
second, these holding under contracts known as Pachtver-
trdge similarly entered into. Under the Rentenguisverträge
the lands were made over to the settler in perpetuity against
payment of a fixed rental, subject to a right of withdrawal
and of repurchase on the part of the State on certain conditions
stated in the contract; under the Pachtvertrdge the lands were
leased to the settlers for a term of years. These contracts
were made under certain laws passed by Prussia. The first
16

of these laws which is dated April 26th, 1886, is entitled
‘A Law concerning the Promotion of German Settlements in
the Provinces of West Prussia and Posen”. Money was
placed at the disposal of the Prussian Government “for the
purpose of strengthening, by means of settling German
peasants and workman, the German element in the provinces
of West Prussia and Posen against efforts to Polonize the
provinces”. With the money thus appropriated lands were
purchased by the Prussian State and delivered to the settlers.

Ot the Rentengutsverirége, two examples have been
brought by the representatives of Poland to the attention of
the Court. One of these has been called the “‘Posen’’ form, and
the other the ‘“‘Rattai’’ form. The rights conveyed under these
forms are in substance the same. Each form contains cer-
tain “general conditions” and certain “special conditions”.
The Pachiverträge also contain general and special conditions.

Under the Council’s Resolution, the case before the Court
relates only to two classes of settlers; first, those holding
under Rentengutsvertrdge, concluded prior to November r1th,
1918, where there was no Auflassung before that date ; and
secondly, those holding under leases (Pachtvertrdge) con-
tracted before November 11th, 1918, for which Rentenguts-
verträge were substituted after that date.

By the documents filed with the Court the present subject
of controversy appears to have been brought to the attention
ot the League of Nations by a telegram addressed to the Secre-
tary-General on November 8th, 1921, by the German League
for the Protection of the Rights of Minouities in Poland
(Deutschtumsbund zur Wahrung der Minderheitsrechte in
Polen) of Bydgoszcz.(Bromberg), which stated that several
thousand families of farmers of German origin had, in viola-
tion of the provisions of the Minorities Treaty, been called
upon by the Polish Government to vacate their lands before
December ist. The telegram urgently requested that measu-

\
17

res should immediately be taken for the protection of the
persons in question.

The Secretary-General of the League, proceeding ‘under
a resolution of the Council of June 27th, 1921, relating to the
protection of minorities, at once acquainted the representa-
tive of Poland near the Secretariat with the contents of the
telegram, and also duly advised the Members of the Council.

Acting in conformity with a resolution of the Council
of October 25th, 1920, the President of the Council, M.
Hymans, representative of Belgium, invited the Marquis
Imperiali, representative of Italy, and the Viscount Ishii,
representative of Japan, to join him in the examination of the
question. The committee thus constituted, consisting of the
representatives of three of the Powers represented in the
Council, examined the subject on the basis of information
furnished by the representative of Poland at Geneva as well
as by the Germanic League, and on January 23rd, 1922, made
a preliminary report advising that the Polish Government be
asked to suspend all measures which might in any way affect
the situation of the settlers, until the Council should have had
the opportunity of considering the further observations of
the Polish Government.

Various postponements of the execution of these measures
were subsequently requested and promised, while the Coun-
cil through committees appointed for the purpose continued
its consideration of the subject. On May 17th, 1922, the
Council, acting upon a report presented by the represen-
tatives of Belgium, Italy and Japan, adopted a resolution
by which the Polish Government was requested, pending
further consideration of the matter by the Council, to
suspend. all administrative or judicial measures which might
prejudice the normal situation of the farmers of German race
who had become Polish citizens or whose character as Polish
citizens depended on the solution of questions which were
taised in the report. A further suspension was accordingly
promised, and discussions were immediately resumed between
the Polish Delegation and the Secretariat of the League.
At an extraordinary session of the Council in London in
18

July 1922 the subject was again considered, a representative.
of Poland being present. Further information was obtained
from the Polish Government and its representative as well
as from representatives of the settlers ; and on September
oth, 1922, M. da Gama, representative of Brazil, made to the
Council, then sitting at Geneva, a report recommending that
the legal questions involved be submitted to a committee
of jurists.

This recommendation was adopted by the Council, and a
committee was accordingly appointed, consisting of M. Botella
of Spain, M. Fromageot of France, Sir Cecil Hurst of Great
Britain, and M. van Hamel, Director of the Legal Section of
the Secretariat of the League of Nations.

The conclusions of the Committee, so far as concerns the
questions now before the Court, were to the effect that, as
regarded cases where Rentengutsvertrdge were entered into
before November 11th, 1918, but no Auflassung followed
prior to that date, the expulsion of the settlers from their
lands was not justified, the Committee holding that various
circumstances, including the delay in the fixing of boundaries
and the settlement of plans, and the profound disturbance
caused by the war, were such as to excuse (justifier) the non-
completion. (défaut de régularisation) of the transfer, and that
such non-completion, not being imputable to the settlers, could
not justly be invoked against them, if in other respects they
had satisfied the obligations which their contract imposed.
As to settlers who held their lands under leases which were
concluded before November 1rth, 1018, and which had not
yet expired, the Committee held that they should be left in
possession conformably to their leases.

The Polish Government questioned the soundness of the
conclusions of the Committee of Jurists, and the Council
subsequently decided to send the matter to the Court for an
advisory opinion.

The questions that have been discussed before the Court
fall under two general heads : First, that of the competency
of the League of Nations to take cognizance of the matter ; and
19

secondly, that of the right of the settlers to continue to
hold: and cultivate the lands which they occupy. If, as
Poland has claimed, the subject matter of the controversy is
not within the competency of the League, the Court would not
be justified in rendering an opinion as to the rights of the
settlers. The Court therefore will first consider the question
of competency.

I.

The Council, in taking cognizance of the matter, has acted
under what is known as a Minorities Treaty.

By Article 93 of the Treaty of Peace, signed at Versailles on
June 28th, 1919, to which Poland isa party.

“Poland accepts and agrees to embody ina Treaty with
the Principal Allied and Associated Powers such pro-
visions as may be deemed necessary by the said Powers
to protect the interests of inhabitants of Poland who
differ from the majority of the population in race,
language or religion.”

The Treaty which Poland thus agreed to make was signed on
the same day, the signatories being the United States of
America, the British Empire, France, Italy and Japan (the
Principal Allied and Associated Powers) on the one hand, and
Poland on the other. This is the Minorities Treaty now in
question, on the provisions of which the interposition of the
Council in the matter rests. The provisions of the treaty will
be quoted only so far as they are pertinent to the matter before
the Court.

The preamble of the Treaty, after reciting that the Allied and
Associated Powers had by the success of their arms restored
the Polish nation to the independence of which it had been
unjustly deprived, declares that the Allied and Associated
Powers on the one hand are ‘‘anxious to ensure the execution
of the provisions of Article 93” of the Peace Treaty, and that
Poland, on the other hand, desires ‘‘to conform her institu-
tions to the principles of liberty and justice and to give a sure
20

guarantee to the inhabitants of the territory’ over which.she
has assumed sovereignty. For this purpose, so the preamble
declares, the Minorities Treaty was concluded.

By Article x of this Treâty, Poland undertakes that the
stipulations contained in Articles 2 to 8 shall be recognized
as ‘‘fondamental laws” and that no law, regulation or official
action shall conflict or interfere with or prevail over them.
By Article 2, Poland further “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”.

The first paragraph of Article 7 provides :
t

“All Polish nationals shall be equal before the law
and shall enjoy the same civil and political rights without
distinction as to race, language or religion.”

The first sentence of Article 8 contains the following
additional stipulation : |

“Polish nationals who belong to racial, religious or
linguistic minorities shall enjoy the same treatment
and security in law and in fact as the other Polish nation-
als.”

Without quoting further stipulations the Court will proceed
at once to the provisions of Article 12 of the Treaty, which
reads as follows :

“Poland agrees that the stipulations in the fore-
going Articles, so far as they affect persons belonging
to racial, religious or linguistic minorities, constitute
obligations of international concern and shall be placed
under the guarantee of the League of Nations. They shall
not be modified without the assent of a majority of the
Council of the League of Nations. The United States, the
British Empire, France, Italy and Japan, hereby agree not
2I
to withhold their assent from any modification in these |

Articles which is in due form assented to by a majority
of the Council of the League of Nations.

“Poland agrees that any Member of the Council of the
League of Nations shall have the right to bring to the
attention of the Council any infraction, or any danger of
infraction, of any of these obligations, and that the
Council may thereupon take such action and give such
direction as it may deem proper and effective in the
circumstances. .

‘Poland further agrees that any difference of opinion
as to questions of law or fact arising out of these Articles
between the Polish Government and any one of the
Principal Allied and Associated Powers or any other
Power, a Member of the Council of the League of Nations,
shall be held to be a dispute of an international character
under Article 14 of the Covenant of the League of Nations.
The Polish Government hereby consents that any such
dispute shall, if the other party thereto demands, be
referred to the Permanent Court of International Justice.
The decision of the Permanent Court shall be final and
shall have the same force and effect as an award under
Article 13 of the Covenant.”

It will be observed that by Article 12 the stipulations
of the preceding articles, so far as they affect persons belong-.
ing to racial, religious or linguistic minorities, constitute
“obligations of international concern’’ and are placed ‘under
the guarantee of the League of Nations’ ; that Poland then
agrees that ‘‘any Member of the Council” of the League shall
have the right to bring to the attention of the Council “any
infraction, or any danger of infraction, of any of these obliga-
tions”.

When the matter now before the Court was first brought to
the notice of the League of Nations, it was dealt with by the
Secretariat of the League and by the Council in accordance
with the procedure established by the Council for such cases,
and it was thus repeatedly brought to the attention of the
22

Council by at least three of its members, the representatives
of their respective States. Paragraph 2 of Article 12 provides
that any Member of the Council may bring to its attention any
infraction or danger of infraction of any of the obligations
mentioned, and that the Council may thereupon proceed to act
on the subject. The Court does not think it material to
inquire how or by whom the member or members may have
been induced to bring the matter to the Council’s attention.
The Members of the Council are by the terms of the Covenant
the representatives of the States by which they are appointed.
States can act only by and through their agents and repre-
sentatives. So far as concerns the procedure of the Council
in minority matters, it is for the Council to regulate it. On
the other hand, it is impossible to say that the present matter
has not been brought to the attention of the Council by any
of its members in accordance with the provisions of Article

“12. The report of M. da Gama, opens with the statement
that the matter had been brought to the attention of the
Council by a report presented by three of its members, and
it does not matter that these members were members of a
committee formed under the Resolution of the Council of
October 25th, 1920, to facilitate the performance by the Coun-
cil of its duties in minorities matters.

Moreover, the matter having been brought to the attention
of the Council, the Council, as has been seen, may at once
proceed to ‘‘take such action and give such direction as it
may deem proper and effective in the circumstances”. This
stipulation clearly makes it proper for the Council to exercise
its power under Article 14 of the Covenant to request the
advice of the Court on points of law, on the determination of
which its action may depend. |

In connection with the power of the Council, in the perfor-
mance of its functions under para. 2 of Article 12 of the Mino-
rities Treaty, to refer the present matter to the Court for an
advisory opinion, the Court does not deem it necessary to
interpret paragraph 3 of Article 12, by which Poland consents
‘that any difference of opinion as to questions of law or fact
arising out of the preceding articles of the treaty may be
23

brought before the Court by any one of certain Powers for final
decision as a dispute of an international character. Para-
graph 3, byits very terms, supplements paragraph 2, but is
not in any sense a substitute for it ; and the fact that a ques-
tion brought before the Court by the Council under Paragraph
2 might conceivably be brought before the Court by a single
Power as an international difference under’ Paragraph 3,
cannot be accepted as a reason for preventing the Council
from discharging its duties under Paragraph 2. The possible
range of Paragraph 3, so far as concerns the nature of the ques-
tions embraced in it, may be as great as that of paragraph 2.
If the Court should refuse to take cognizance of a question
presented under either paragraph, on the ground that it
conceivably might have been or might be presented in a
different way under the other, the result might be to make
both h paragraphs practically ineffective.

It is not necessary, having regard to the facts of this
case, to decide whether action by a Member of Council under
para. 2 is a condition precedent to action by the Council
itself.

So far as concerns the question of competency, a further
‘ question remains to be considered, and that is whether there
is in the present case any infraction or danger of infraction
of any of the obligations included under Article 12. While
under the terms of the Minorities Treaty it necessarily rests
with the Council in the first instance to determine whether
an infraction or danger of infraction exists, the Court is of
opinion that upon the facts before it the existence of such a
condition clearly appears.

As has been seen, Article 7 of the treaty provides that
all Polish nationals shall be equal before the law and shall
enjoy the same civil and political rights without distinction
as to race, language or religion. The expression “civil
rights” in the Treaty must include rights acquired under a
contract for the possession or use of property, whether such
‘property be immoveable or moveable.

Article 8 of the Treaty guarantees to racial minorities the
24

same treatment and security ‘in law and in fact” as to other:
Polish nationals. The facts that no racial discrimination:
appears in the text of the law of July 14th, 1920, and that in
a few: instances the law applies to non-German Polish nation-.
als who took as purchasers from original holders of Ger-
man race, make no substantial difference. Article 8 is designed
to meet precisely such complaints as are made in the pre-
sent case. There must be equality in fact as well as ostensible
legal equality in the sense of the absence of discrimination
in the words of the law.

Article 5 of the law of July 14th, 1920, provides for the
expulsion from the lands in question of any persons who may
occupy them under an agreement with any of the proprie-
tors for whom the Polish Treasury has been substituted under
Article x of the law, and by Article 1 it appears that those for
whom the Polish Treasury has been substituted include the
German States. The outstanding, fundamental point in the
present case is the fact that the persons whose rights are now
in question are as a class persons of the German race who
settled on the lands in question under the Prussian law of
1886 and subsequent legislative acts, under contracts made
with the Prussian State. Indeed, it is for this very reason
that Poland contends that the contracts now under cor sider-
ation.are to be held invalid. Hence, although the law does
not expressly declare that the persons who are to be ousted
from the lands are persons of the German race, the inference
that they are so is to be drawn even from the terms of the
law. This is also clearly established as a fact by the proofs
before the Court. It undoubtedly is true, as Poland has sta-
ted, that the persons whose rights are involved were settled
upon the lands in pursuance of a policy of Germanizatior.
which appears upon the face of the legislation under which
the contracts were made. The effect of the enforcement of
the law of July r4th, 1920, would be to eradicate what
had previously been done, so far as de-Germanization would
result from requiring the settlers in question to abandon their
homes. But, although such a measure may be comprehen-
sible, it is precisely what the Minorities Treaty was intended to.
25

prevent. The intention of this Treaty was no doubt to eli-
minate a dangerous source of oppression, recrimination and
dispute, to prevent racial and religious hatreds from having
free play and to protect the situations established upon its.
conclusion, by placing existing minorities under the impartial

protection of the League of Nations. |

There is yet another point which the Court will consider.
Poland contends that her action as regards the settlers has
been taken in the exercise of the rights conferred upon her
by the PeaceTreaty, and especially by Article 256, and that the
interpretation of this treaty does not belong to the Council
of the League of Nations when acting under the Minorities
Treaty. The Court is unable to share this view. The
main object of the Minorities Treaty is to assure respect for
the rights of Minorities and to prevent discrimination against
them by any act whatsoever of the Polish State. It does not
matter whether the rights the infraction of which is alleged
are derived from a legislative, judicial or administiative act,
or from an international engagement. If the Council ceased
to be competent whenever the subject before it involved the
interpretation of such an international engagement, the
Minorities Treaty would to a great extent be deprived of
value. The reasons urged by Poland for a restrictive inter-
pretation of the Treaty do not justify the Court in thus con-
struing it. By Article 93 of the Peace Treaty, Poland agrees
to provide by a special treaty for the protection of the inter-
ests of her racial, linguistic and religious minorities. This
pledge of protection would be altogether uncertain and con-
jectural if the Minorities Treaty should cease to be applicable

‘whenever the act complained of involved the consideration. of
a stipulation of the Peace Treaty not specifically relating
to minorities. In order that the pledged protection may .
be certain and effective, it is essential that the Council, when
acting under the Minorities Treaty, should be competent, inci-
dentally, to consider and interpret the laws or treaties on
which the rights claimed to be infringed are dependent.
26

Although this case has been presented by the Polish Govern-
ment as one under Article 256 of the Treaty of Peace, the
Court is of opinion that the interpretation of the various
provisions of the Treaty of Peace and of the other
international agreements connected with it is to be con-
sidered as incidental to the decision of questions under
the Minorities Treaty.

I.

The Court, before entering upon the examination of the
two points (a) and (b) contained in the second question submit-
ted to it, considers it necessary to deal, in the first instance,
with a question common to both points, namely, whether and
to what extent the date of the Armistice, November 11th,
1918, affects the validity of the contracts now under conside-
ration.

According to Articles 2, 3, 7, and 8 the Polish Law of
July r4th, 1920, the validity of certain legal transactions
relating to the property of the German Empire and the Ger-
man States, lying within the territories ceded to Poland, de-
pends on the fact. whether these transactions took place
before or after November 11th, 1918, and that date appears
in the questions submitted to the Court. This question of
date is raised upon a stipulation of the Armistice as supple-
mented by the Final Protocol signed at Spa on December Ist.
1918, and upon certain provisions of the Treaty of Versailles.

In the opinion of the Court, the date of November rith,
1918, has not, so far as concerns the rights of the settlers, the
decisive character attributed to it by the Polish Law of 1920.

Article XIX, paragraph 3, of the Armistice contains the

following provision :

. «While the Armistice lasts, no public securities shall
be removed by the enemy which can serve as a pledge to
the Allies to cover reparation for war losses ».

By the protocol concluded at Spa, December ist, 1918, in
relation to the execution of the third and following para-
graphs of Articles XIX of the Armistice, it is provided that,
27

while the Armistice lasts, “the German Government shall
take no measure that can diminish in any form whatsoever the
value of its public or private domain as a common pledge to
the Allies for the recovery of the reparation to which they are
entitled”, and particularly that it shall not alienate, cede or
hypothecate railways, canals, mines, woods or colonial, indus-
trial or commercial enterprises which belong to it or in which
it has an interest.

These stipulations are connected in the Polish argument
with Article 256 of the Treaty of Versailles, which provides
that the Powers to which German territory is ceded shall
acquire all property and possessions situated therein, belong-
ing to the German Empire or to the German States, and that
the value of such acquisitions shall be fixed by the Reparation
Commission and paid by the State acquiring the territory to
the Reparation Commission for the credit of the German
Government on account of the sums due for reparation.
Article 92 of the Treaty provides that there shall be excluded
from the share of financial liabilities of Germany and Prussia,
assumed by Poland, that portion of the German or Prussian
debt which, according to the finding of the Reparation Com-
mission, “arises from measures adopted by the German and
the Prussian Governments, with a view to German coloni-
sation in Poland” ; and that in fixing under Article 256 the
value of the property and possessions of Germany and the
German States passing to Poland, the Reparation Commission
shall exclude from the valuation buildings, forests and other
State property, “which belonged to the former Kingdom of
Poland”, which property Poland was to acquire “‘free of all
costs and charges”.

With regard to the last clause it is only to be observed
that no claim has been made that the lands now in question
were the “property” of the former Kingdom of Poland.

The time at which territories formerly under German
sovereignty passed under Polish sovereignty is clearly shown
by the terms of the Armistice, together with those of the
Minorities Treaty and the Treaty of Peace.
28.

By Article XII of the Armistice, which is found among the
“Clauses relating to the Eastern Frontiers of Germany”,
German troops then in territories which before .the war
formed part of Russia were required to return within the
frontiers of Germany as they existed on August ist, 1914.
They therefore were not required to be withdrawn from Ger-
man territories which later passed to Poland.

On the other hand, Paragraph 3 of the Preamble of the
Minorities Treaty runs as follows :

“Whereas the Polish State, which now in fact exercises
sovereignty over those portions of the former Russian
Empire which are inhabited by a majority of Poles, has
already been recognised as a sovereign and independent
State by the Principal Allied and Associated Powers ;”

and paragraph 4, as follows:

‘Whereas under the Treaty of Peace concluded with
Germany by the Allied and Associated Powers, a Treaty
of which Poland is a signatory, certain portions of the
former German Empire v will be incorporated in the terri-
tory of Poland”.

- This statement, which is in conformity with the historical
events leading to the restoration of the independence of the
Polish nation, merely denotes the fact, which is not disputed,
that on June 28th, 1919, when the Treaty of Peace and the
Minorities Treaty were signed, although Poland was recognised
as exercising sovereignty over portions of the former
Russian Empire, the cession and occupation of the German
territories were left to be effected by the coming into force
of the Treaty of Peace, and the German Government as well
as the Prussian State is to be considered as having continued
to be competent to undertake transactions falling within the
normal administration of the country during that period. |
Earlier dated were applied in Alsace-Lorraine by virtue of
special and specific provisions of the Treaty.
29

The question whether and to what extent the provisions
of the Armistice and of the Spa Protocol apply to dealings
with the lands now in question, will be examined hereafter in
connection with points (a) and (b) of question 2.

III.

The second question before the Court relates to certain
measures taken by Poland affecting certain contracts entered
into by the settlers with the Prussian Government. Before
proceeding to answer this question it should be observed
that German law is still in force in the territories ceded by

_ Germany to Poland, and that reference to German law is
necessary in the examination of the nature and extent of the
rights and obligations arising under these contracts. The
Court, however, will not discuss distinctions and exceptions
which are not necessary for the present case.

As regards the Rentenguisverträge mentioned in point (a) —
of the question, they are both in form and in substance a
special kind of contract of sale. Specimens of such con-
tracts are before the Court. The contract states that the
holder acquires the land as owner ; he is described throughout
the instrument as a purchaser and he enters into possession of
the land upon the conclusion of the contract and the payment
of a fixed sum. The chief characteristics which distinguish
these Rentengutsvertrége from ordinary contracts of sale are :

(x) part of the purchase price is paid before taking possession
of the land and the remainder is to be paid thereafter in the
form of a fixed rent, which may be redeemed on conditions
stated in the contract ; and ;

(2) under the special and general conditions ( Bedingungen),
which form part of the contract, certain obligations are im-
posed upon the purchaser and certain rights are reserved to the
Prussian State, including in certain specified cases the right
of withdrawal and the right of re-purchase. But except as
otherwise provided in these special and general conditions,
30

the ordinary rules governing contracts of sale apply to the
Rentengutsvertrage.

Under German law the. transfer of ownership of land is
subject to specific provisions. A contract of sale, for instance,
even followed by entry into possession on the part of the
purchaser, is not sufficient in itself to vest the legal ownership
(Eigentum) in the purchaser. To effect a transfer of such
ownership, Aujflassung and entry in the land registry are
necessary. The Auÿlassung consists in declarations of trans-
fer of ownership made at the same time by both parties
before the land Registry Office (Articles 873 and 925 of the
German Civil Code). It follows that holders under Renten-
gutsvertrdge where there was no Auflassung before November _
rth, 1918 — had not acquired legal ownership of the lands
prior to such date. But it by no means follows that they
had not acquired a right to the land.

It has been contended that, before Auÿlassung, the rights
of the holders, if any, are only inchoate or imperfect rights
which are not enforceable at iaw. The Court is unable to
share this view.

An examination of the Rentenguisvertrag shows that it
amounts to a valid and enforceable contract for the owner-
ship of the land. The first clause is as follows :

» Der Landwirt:.... erwirbt die im Teilungsplane des
Anstedlungsgutes ...... Kreis...., unter Z.....
nachgewiesene Ansiedlerstelle in der Grosse von ungefahr....
ha., bestehend aus den Flurstiicken..... nebst den zuge-
teilien Gebäuden — zu Eigentum gegen Rente unier den
ihm bekannt gemachten, diesem Vertrage als Anlage
beigefügten, einen wesentlichen Bestandieil des Vertrages
bildenden allgemeinen und den hierunter folgenden beson-
deren Bedingungen.” |

Fe farmer, hereby acquires as owner, in return
for payment of a rent, the settlement holding shown
as .... on the allotment plan of the settlement estate
of..... , in the district of ..... This holding is of

about..... -, hectares and consists of the fields....
31

and the buildings appertaining thereto. This contract
is granted subject to the general conditions which
have been made known to the transferee, and which are
annexed to the contract and form an integral part thereof,
and to the following special conditions . . . .”

This is a plain statement that the purchaser acquires the
specified land as owner against rent (erwirbt zu Eigentum
gegen Rente) subject to the Special and General Conditions.

The special conditions contain the following provisions :
The purchaser is to make a cash payment on account.. The
rent is specified. The piece.of land is to be handed over on
the payment on account being made. If the payment on
account is not made, the State may withdraw from the con-
tract. Therights of the purchaser may not be assigned except
with the sanction of the State.

It is unnecessary to refer to the other special conditions.

It is obvious that there is nothing in any of the Special
Conditions that prevents the purchaser from having a right
to the land on the terms of the contract.

The General Conditions require examination.

In the form of contract furnished to the Court by the
Secretary-General of the League of Nations paragraph 1
provides that the purchaser is, within a year, to make an
“efficient economic settlement’ (Leistungsfahige wirtschajt-
liche Ansiedlung) on the land, and adds ‘‘the State shall judge
whether this duty has been carried out”’.

Paragraph 2 gives the State the right to withdraw from
the contract if the purchaser does not .begin to cultivate
within six months and complete the cultivation within two
years; also in the event of certain specified breaches of
contract by the purchaser, and further, if the right of the
purchaser against the State is seized by a creditor (Wenn
der Anspruch des Kdufers gegen den Siaat auf Uebertragung
des Eigeniums an der Stelle von einem Gliubiger gepfindet
wird).

Under paragraph 3, the land is to be conveyed (aufgelassen
32

after the purchaser has fulfilled to the satisfaction of the
State his obligations under the preceding paragraphs, and the
State has provided the necessary documents for the land
register. ; |

This clause cannot be read as giving the State an arbitrary
right to refuse the Auflassung if the conditions of the con-
tract have in fact been fulfilled by the purchaser. In such
a case the Auflassung may be enforced by proceedings at
law, and even if there were any difficulty about compelling the
Government to execute the conveyance, there would be no
right on the part of the Government to evict from the land the
purchaser in possession who had complied with his contract.

It is obvious that in the ordinary course the State would
execute the conveyance if the terms had been fulfilled by the
purchaser, and that, as the State would not in such case have
any right to evict, it would have nothing to gain by postpon-
ing the Auflassung.

Paragraph 6 makes provision against partial alienations
of the land, and also against alienation of the whole except
to persons approved by the State. |

Paragraph 7 provides that the purchaser should himself
reside on the property and conduct the husbandry. The third
clause of this Condition provides that permission for a change
of possession or ownership will be refused by the State after
the expiration of twelve years from the handing over of the
land only if it appears that the change may render doubtful
the attainment of the purpose of the Law of 1886.

Some argument was addressed to the Court on behalf of
the Polish Government on the subject of Conditions 6 and 7,
but these appear to have no material bearing upon the case, .
and the same observation must be made with regard to the
right of repurchase reserved to the State in certain eventuali-
ties by paragraph 9 of the General Conditions.

Paragraph 11 contains the following condition :

Mit der Uebergabe erlangt der Kdufer das Recht, die
Stelle als Niessbraucher zu nutzen.
33

“with the handing over the purchaser acquires the right of
using the place as a usufructuary.’”’ Under German law the
usufructuary is protected in his possession and in the enjoy-
ment of the fruits of the thing. Under other forms of con-
tracts presented to the Court, in which the purchaser is not
mentioned as a “usufructuary”,. he acquires, as soon as the
possession has been transferred to him, a right to hold the
land as if it were his own (Eigenbesitz).

' There is nothing else in the Rentengutsvertrag which calls
for notice. It appears to the Court to be clear that the
purchaser had rights to the land even before Auflassung. He
gave valuable consideration in money and in cultivation for
the acquisition of this interest, and it was an interest recog-
nised by law and which might be safeguarded by legal pro-
ceedings. The purchaser acquired a jus ad rem, and after
Auflassung had a jus in re.

The fact that there was a political purpose behind the
colonisation scheme cannot affect the private rights acquired
under the law, and indeed it is self-evident that no scheme
of colonisation of this nature could possibly succeed unless
the settlers had security in the property for which they had
paid in money and in kind.

The acquirer of the Rentengut, as well before as after
Auflassung, has not only a right to possession but is under an
obligation, to exercise that right. Paragraph 7 of the General
Conditions requires the purchaser and his successors to live
on the land and themselves to carry on the cultivation. They
cannot, without permission of the State, let the property or
permit it to be farmed by a deputy. Moreover, there are
substantial limitations on the right of resale. These obli-
gations impose a material burden upon the purchaser in
addition to the payment of rent, while they deprive him of any
opportunity for speculative profit. This fully explains the
fixing of a moderate rent. |

As to the right of a purchaser to the transfer of ownership
under a contract of sale, Article 433 of the Civil Code pro-
vides that “by a contract of sale the seller of a thing is bound
to deliver the thing to the purchaser and to procure (for
34

the latter) ownership of the thing”. Under ordinary circum-
stances, therefore, a purchaser of a piece of land has an un-
doubted right, enforceable by legal proceedings, to demand
of the seller the Auÿlassung which is necessary to complete
the transfer of ownership. A final judgment obtained by the
purchaser under a Rentenguisvertrag takes the place of.the
vendor’s declaration of Auflassung (German Code of Civil
Procedure, Article 894). ;

The fact that, in the present case, one of the contracting
parties is the State does not affect the legal situation, because
ander German law, the State, in its relations under
private law, is subject to the ordinary rules of private law and
can sue and be sued before the Courts (Article 4 of the Intro-
ductory Act (Eïnführungsgeset:) to the German Code of Civil
Procedure). The claim which the purchaser of a Rentengut
has against the State for transfer of ownership is incidentally
recognised by Clause x, No. 5 of paragraph 2 of the General
Conditions. Nor is the State, in the opinion of the Court,
at liberty arbitrarily to deny this claim. Article 157 of the
German Civil Code provides that “contracts shall be inter-
preted according to the requirements of good faith, ordinary
usage being taken into consideration”. This provision is
applicable to all kinds of contracts and resort to the Courts is
always open unless expressly excluded. '

IV.

Having examined the nature and extent of the rights
arising under the Rentengutsverirdge, and especially with
regard to the time before Auflassung, the Court must next
consider what, if any, are the effects upon these contracts of
the change of sovereignty and of the ownership of State
property in the territories concerned.

The representative of Poland made the following statement
with regard to those Rentenguisverträge where Auflassung
had taken place before November rith, 1918 ;

“The category of colonists not lable to expulsion under
the Law of July 14th, 1920, comprises 17, 240 colonists,
35

holding 262, 942 acres of land, under Rentengutsverirdge
completed by Auflassung and registration of title in
the Land Registers, both having been granted by the
Prussian Government before November r1th, 1918.
These colonists are all of German race and language.
The Law of July 14th, 1920, does not apply to these
Colonists. Their title to the land is recognised as
valid by the Polish Government subject to the terms of
the Rentenguisuerträge”.

This recognition of title implies the admission that, after
Auflassung, legal ownership was vested in thé holder of the
Rentengut, so that the ownership of Prussia having ceased to
exist, such ownership could not pass to Poland under Article
256 of the Peace Treaty.

In the case of Rentenguisverträge, where no Auflassung
had taken place, and where the Prussian State appeared
still in the land register as owner, Poland, under Article
x of the Law of July 14th, 1920, proceeded to the substitution
in the land register of the Polish Treasury for the Prussian
State as owner.

It has been shown that under the Rentengutsvertrage
the purchaser has, even before Auflassung, vested rights
enforceable as against the vendor. The principal question
with which the Court is now confronted is the following :
The sovereignty and the ownership of State property
having changed, is the settler who had concluded a Renten-
gutsvertrag with the Prussian State entitled to claim from the
Polish Government as the new owner the execution of the
contract, including the completion of the transfer by Auj-
lassung ?

Three views have been suggested.

The first is that the contracts are of a “personal” nature
and exist only as between the original parties, i. e. the Prus-
sian State and the holder of the lands, so that the obligations
of the former cannot be considered as having passed to Poland.
The reasons why this hypothesis is not acceptable may be
found both in what has been said as to the legal nature of the
36

rights of the holder under the Rentengutsverirdge and in what
is now to be said concerning the effect of a change of
sovereignty on private rights.

Equally unacceptable is the second view, that the Renten-
guisveriräge have automatically fallen to the ground in
consequence of the cession of territory. Private rights
acquired under existing law do not cease on a change of
sovereignty. No one denies that the German Civil Law, both
substantive and adjective, has continued without interruption
to operate in the territory in question. It can hardly be
maintained that, although the law survives, private rights
acquired under it have perished. Such a contention is.
based on no principle and would be contrary to an almost
universal opinion and practice.

There remains the third view that private rights are to be ©
respected by the new territorial sovereign.

The general question whether and under what circumstances
a State may modify or cancel private rights by its sovereign
legislative power, requires no consideration here.

. The Court is here dealing with private rights under specific
provisions of law and of treaty, and it suffices for the pur-
poses of the present opinion to say that even those who
contest the existence in international law of a general prin-
ciple of State succession do not go so far as to maintain
that private rights including those acquired from the State
as the owner of the property are invalid as against a successor
in sovereignty.

' By the Minorities Treaty Poland has agreed that all Polish
nationals shall enjoy the same‘civil and political rights and
the same treatment and security in law as wellasin fact. The
action taken by the Polish authorities under the Law of July
14th, 1920, and particularly under Article 5 is undoubtedly
a virtual annulment of the rights which the settlers acquired
under their contracts‘and therefore an infraction of the obli-
gation concerning their civil rights. It is contrary to the
37

principle of equality in that it subjects the settlers to a
discriminating and injurious treatment to which other
citizens holding contracts of sale or lease are not subject.

It remains now for the Court to consider whether the
protection assured by the Minorities Treaty in respect of
civil rights is affected by any of the provisions of the Peace
Treaty, or whether the continuous validity of the contracts
is impaired by any of the contract clauses. .

Poland has invoked Article 91, paragraph 2 of the Peace
Treaty, which provides that German nationals or their descen-
dants who became residents of the ceded territories after
January Ist, 1908, will not acquire Polish nationality without
a special authorisation from the Polish State. Poland has
further invoked Article 255, paragraph 2, of the same Treaty,
which. provides that Poland, in taking over a portion of the
debts of the German Empire and the Prussian State, shall not
be required to assume that portion of the debt which, in the
opinion of the Reparation Commission, is attributable to
the measures taken by the German and Prussian Governments
for the German colonisation of Poland. Poland contends
that these stipulations indicate a purpose of de-Germanisation,
and that consequently she should not be required to perform
any of the obligations or to recognise any of the rights resulting
from contracts into which the former sovereign, in carrying
out his policy of Germanisation, entered with reference to the
property which passed to the Polish State under Article 256
of the Treaty.

. The stipulations in question are specific, and respectively
relate only to a limited phase of the acquisition of nationality,
and to the apportionment of public debts. They have no
bearing upon the preservation of private rights; and an
extension of them to that subject not only would be inconsis-
tent with the provisions of the Minorities Treaty concluded the
same day, but would also be inconsistent with other provisions
of the Peace Treaty directly bearing on private rights. :

Furthermore, Poland claims that she acquired the property
38

of the German States unburdened, because the Peace Treaty
does not in terms require her to fulfil the obligations which
those States had contracted with regard to such property.
The Court, as has already been seen, is of opinion that no
treaty provision is required for the preservation of the rights
and obligations now in question. - In the opinion of the Court,
therefore, no conclusion can be drawn from the silence of the
Treaty of Peace contrary to that resulting from the preceding
statements. On the other hand, however, the position of ©
the Court as regards the protection of the private rights
now in question appears to be supported by the provisions of
that Treaty.

. It is true that the Treaty of Peace does not in terms formally
announce the principle that, in the case of a change of sove-
reignty, private rights are to be respected ; but this principle
is clearly recognised by the Treaty. Under Article 75,
contracts between the inhabitants of Alsace-Lorraine and the
former German authorities are as a rule maintained, and if
terminated by France in the general interest, equitable
compensation must be accorded under certain conditions. If
this rule prevails in Alsace-Lorraine, which under Article 5x
was restored to French sovereignty as from the date of
November 11th, 1918, it is hardly conceivable that it was
intended by the Treaty to give discretionary powers as
regards similar rights in territories the sovereignty of which
was acquired only by cession. Furthermore, by paragraph 2
of the Annex to Section V (Contracts, Prescriptions,
Judgments) of Part X it is provided that, as between former
enemies, the following contracts are to be maintained :

(a) Contracts having for their object the transfer of estates
or of real or personal property where the property therein
had passed or the object had been delivered before the
parties became enemies ;

(b) Leases and agreements for leases of land and houses ;
(c) Contracts of mortgage, pledge or lien ;

(d) Concessions concerning mines, quarries and deposits ;
39
(e) Contracts between individuals or cornpañies and
States, provinces, municipalities, or other similar juri-
dical persons charged with administrative functions,
and concessions granted by States, provitices, munici-
palities, or other similar juridical persons charged with
administrative functions. -

If as between, enerñies stich contracts are maintained, it
seems impossible that the Treaty should have coutitenanced
the annulment of contracts between a State and its newly
acquired nationals. . |

Certain. other considerations, relating to the conditions
contained in the Rentenguisverträge have been invoked in
order to justify the annulment of these contracts.

First, the atténtion of the Court has been drawn to their
mixed private and public character. But the political
motive originally connected with the Rentengutsverirdge does
not in any way deprive them of their character as contracts
under civil law, and the few clauses which they contain of a
distinctively political character become inoperative without
interfering in the least with the normal execution of their
essential clauses.

Secondly, no argument for the annulment of the contracts
can be based upon the depreciation which has taken place
since their conclusion in the value of the currency in which
the stipulated rent is payable. The Court is not called wpon
to consider whether or how the disproportion between the
value of the estate and the depreciation of the rent can be
legally evercome. A similar disproportion has taken place
in numerous other cases more or less similar, and it would be
incompatible with the principle of equality to treat such
disproportion a8 invalidating the contract only in the case
of the Rentengutsvertrage.

It remains to consider whether an Au/lassimg made after
November 11th, 1918, was in violation of Clause XTX of the
Armistice Conditions and Clause 1 of the Final Protocol signed
at Spa, December 1st, 1018. Eveñ assuming that from
any point of view the date of the Armisticé, November 11th,
1018, was the decisive date for determining the validity of the
contracts tinder consideration, it may be observed that an Auj-
40

lassung, which is but the fulfilment of a contract of alienation
already entered into by the Prussian State, cannot be consi-
dered as a “removal” (distraction) of public securities within
the meaning of the Armistice, nor as a “diminution” of the.
value of the public or private domain within the meaning of
the Spa Protocol. The settlers were already in legal possession
of the lands in which they had invested their money, and to
which they had already acquired rights enforceable at law ;
and the Prussian State was not forbidden to perform the usual
administrative acts under its pre-existing contracts with
private individuals, especially where the delay in the perfor-:
mance of such acts had been due to the disturbed conditions
arising from the war.

V.

Point (b) in question 2 relates to leases (Pachiverträge)
concluded prior to November ith, 1918. This point, accor-
ding to the Resolution of the Council of April 18th,1923,
transmitted to the Court by the Secretary-General of the
League of Nations on April 28th, “refers exclusively to the
case of a special category of colonist farmers, namely those ©
who occupy holdings in virtue of leases contracted before the
Armistice and still unexpired, and who subsequently obtained
after the Armistice amortization contracts (Rentenguisoer-
trâge) for these holdings.”’

Under the Pachiverirag the place is handed over to the
occupant, at first without buildings, which so far as is neces-
sary the State undertakes to provide; but the settler is
obliged to make a cash deposit (1) for the security of the
State, and (2) for the acquisition of an inventory, and he is
also required to pay a percentage on the cost of the buildings
as security for their upkeep. The rent is payable (1) for the
land, and (2) for the use of the buildings. The settler’s
wife, when signing the lease jointly with him, is liable. as
an individual debter. The lessee is required to keep a stock
of cattle of a certain value. He is obliged to hand back
any part of the land which may prove to be required “for
AI
the fulfilment of the private law obligations of the State’.
On the termination of the lease he is entitled to a conditional
compensation ; and the fact is particularly to be noticed that,
by an express clause in the lease, the event of his taking over
the place under a ‘‘ Rentengutsvertrag’’ either during or at the
end of the lease, is dealt with, and the following conditions
are provided : (1) the security for the lease and the security
for upkeep of the buildings are credited as cash on the pur-
chase-money for the buildings, (2) an allowance of two years’
rent is credited as cash on account of the purchase of the
buildings, and (3) an extension of time is given for the payment
of the balance of the purchase-money of the buildings, for
which balance a mortgage is also executed.

The right of the lessee is enforceable at law. even against
third parties. Article 571 of the German Civil Code provides
that “‘where the land subject to a lease is,. after delivery
to the lessee, transferred by the lessor to a third party, the
acquirer, during the period of his ownership, takes the place
of the lessor in the rights and obligations arising under the
lease”.

What has heretofore been said in refutation of the argument
that the Rentengutsverirdge need not be recognised by Poland
because of the ‘“‘personal”’ character of the rights, the “politi-
cal” nature of the contracts and the disproportion of the rent
to the value of the land, applies equally to the argument
against the recognition of the Pachiverträge and need not be
repeated.

It is evident that under the “Pachtvertrdge’ a certain
security of tenure is assured, subject necessarily to the
performance of the conditions of the tenure. The holder
becomes personally attached to the land, with a reasonable
expectancy of permanent occupancy, and it becomes his
home, for the preservation of which he gives his labour, as
well as a part of what he produces. The State proprietor. on
the other hand finds its compensation in the cultivation,
development and productivity of the land, which is thus made
to contribute to the wealth and prosperity of the State.
42

For the reasons stated, the Court is of opinion that the
Pachiverträge were not affected by the transfer of sovereignty,
and that they. remain in force unless they have expired or
have been legally superseded by Rentengutsvertrdge.

If the holder of a Pachtvertvag realised, by the fruits of
his industry, enough to enable him to undertake the expendi-
ture incumbent upon the holder of a Rentengutsvertrag, it
was very usual for him to exchange the Pachivertrag for a
Rentengutsvertrag, with its permanency of tenure. This
possibility is contemplated by the terms of the Pachivertrag
itself. The question submitted to the Court relates to the
rights of those holders of Pachtverträge who had given their
Pachtvertrdge in exchange for Rentenguisverträge. The
Polish Government has taken up the position that this put
an end to the Pachivertrag, but that the Rentenguisvertrag,
in consideration of which the Pachtvertrag was surrendered,
is void. It is impossible to support such a contention. If
the Rentenguisvertrag were held to be void, in all fairness the
purchaser would be entitled to have his Pachtvertvag restored
to him. But, in the view of the Court, the Rentengutsvertrag
was good. It is not obnoxious to any of the objections which
have been urged as already stated in this opinion. The
exchange of the Pachtvertrag for the Rentengutsvertrag was a
reasonable and proper operation in the ordinary course of
management of land.

Point (b) of the second question as explained by the Council
inquires whether the position taken by Poland to the effect
that Rentenguisverträge granted after November 18th, 1918,
to holders of Pachivertrdge are invalid, is in conformity which
her obligations. The Court is of opinion that the position
of the Polish Government is not justified. As the Prussian
State retained and continued to exercise its administrative
and proprietary rights in the ceded territory until this terri-
tory passed to Poland under the Treaty of Peace, the only
ground on which the position of Poland could be justified is,
in the opinion of the Court, the contention that the granting
of the Rentenguisvertrag was prohibited by the provision
in the Spa Protocol, by which the German Government
43

engaged, while the Armistice lasted, not to take any measure
that could diminish the value of its domain, public or private,
as a common pledge to the Allies for the recovery of repara-
tions. The Court thinks that in view of the connection
which has been shown to exist between the Pachtvertrdge and
the Reniengutsvertrdge, it would be an unreasonable straining
of the prohibition in the Protocol to hold that it precluded
the Prussian State from granting, prior to the passing of the
territory to Poland, a Rentengutsvertrag to the holder ofa
Pachtvertrag granted prior to the Armistice.

For these reasons,
The Court is of opinion,

That the points referred to in (a) and (b) of the Resolution
of the Council of the League of Nations of February 3rd, 1923,
do involve international obligations of the kind contemplated
by the Treaty between the United States of America, the
British Empire, France, Italy, Japan and Poland, signed at
Versailles on June 28th, 1919, and that these points come
within the competence of the League of Nations as defined in
that Treaty ;

That the position adopted by the Polish Government, and
referred to in (a) and (b) of the said Resolution was not in
conformity with its international obligations.

Done in French and English, the English text being autho-
ritative, at the Peace Palace, The Hague, this tenth day of
September, nineteen hundred and twenty-three, in two
copies, one of which is to be deposited in the archives of the
Court and the other to be forwarded to the Council of the
League of Nations.

(Signed) LopER,
President.

(Signed) A. HAMMARSKJÜLD,
Registrar.