                             SEPARATE OPINION OF JUDGE DONOGHUE

       Obligation under customary international law to exercise due diligence in preventing
significant transboundary environmental harm — Environmental Impact Assessment —
Notification — Consultation.

       1. In each of these joined cases, the Applicant contends that the Respondent violated general
international law by causing significant transboundary harm to the territory of the Applicant, by
failing to conduct an environmental impact assessment and by failing to notify and to consult with
the Applicant. I write separately to present my views regarding customary international law in
respect of transboundary environmental harm. In particular, I emphasize that States have an
obligation under customary international law to exercise due diligence in preventing significant
transboundary environmental harm. I consider that the question whether a proposed activity calls
for specific measures, such as an environmental impact assessment, notification to, or consultation
with, a potentially affected State, should be judged against this underlying obligation of due
diligence.

       2. I begin with two points of terminology. First, the Court today, as in the Pulp Mills case
(Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I),
p. 14), uses the terms “general international law” and “customary international law”, apparently
without differentiation. Although some writers have ascribed distinct meanings to these two terms,
I consider that the task before the Court today is the examination of “international custom, as
evidence of a general practice accepted as law” in accordance with Article 38, paragraph 1 (b), of
the Statute of the Court. Secondly, I use the term “State of origin” here to refer to a State that itself
plans and engages in an activity that could pose a risk of transboundary harm. Much of what I have
to say would also apply to a State that authorizes such an activity. I do not intend here to address
the legal consequences of private activities that are not attributable to the territorial State, nor do I
take account of ultrahazardous activities, which are not before the Court today.

                    CUSTOMARY INTERNATIONAL LAW OF THE ENVIRONMENT

       3. An assessment of the existence and content of customary international law norms is often
challenging. Over the years, some have seized on the 1927 statement of the Permanent Court of
International Justice that “[r]estrictions upon the independence of States cannot . . . be presumed”
(“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 18) to support the assertion that,
where evidence of State practice and opinio juris is incomplete or inconsistent, no norm of
customary international law constrains a State’s freedom of action. Such an assertion, an aspect of
the so-called “Lotus” principle, ignores the fact that the identification of customary international
law must take account of the fundamental parameters of the international legal order. These
include the basic characteristics of inter-State relations, such as territorial sovereignty, and the
norms embodied in the Charter of the United Nations, including the sovereign equality of States
(Article 2, paragraph 1, of the Charter of the United Nations).

       4. In the case concerning Jurisdictional Immunities of the State ((Germany v. Italy: Greece
intervening), Judgment, I.C.J. Reports 2012 (I), p. 99), the question was whether, under customary
international law, Germany was immune from certain lawsuits and measures of constraint in Italy.
The Court recognized that it faced a situation in which two basic parameters of the international
legal order — sovereign equality and territorial sovereignty — were in tension. It observed that
State immunity “derives from the principle of sovereign equality of States” which “has to be
viewed together with the principle that each State possesses sovereignty over its own territory”

                                                 -2-

(pp. 123-124, para. 57). More precisely, “[e]xceptions to the immunity of the State represent a
departure from the principle of sovereign equality. Immunity may represent a departure from the
principle of territorial sovereignty and the jurisdiction which flows from it” (p. 124, para. 57). The
Court then evaluated the evidence of State practice and opinio juris in light of these competing
principles, finding sufficient evidence of State practice and opinio juris to define with some
precision the rules of customary international law that governed the facts in that case.

       5. The Court’s approach in Jurisdictional Immunities of the State, which grounds the analysis
in fundamental background principles, applies with equal force to the consideration of the existence
and content of customary international law regarding transboundary environmental harm. If a party
asserts a particular environmental norm without evidence of general State practice and opinio juris,
the “Lotus” presumption would lead to a conclusion that customary international law imposes no
limitation on the State of origin. As in Jurisdictional Immunities of the State, however, the
appraisal of the existence and content of customary international law regarding transboundary
environmental harm must begin by grappling with the tension between sovereign equality and
territorial sovereignty.

       6. As a consequence of territorial sovereignty, a State of origin has broad freedom with
respect to projects in its own territory (the building of a road, the dredging of a river). However,
the equal sovereignty of other States means that the State of origin is not free to ignore the potential
environmental impact of the project on its neighbours. At the same time, the rights that follow
from the equal sovereignty of a potentially affected State do not give it a veto over every project by
the State of origin that has the potential to cause transboundary environmental harm.

       7. The 1992 Rio Declaration on Environment and Development (Principle 2) and its
predecessor, the 1972 Stockholm Declaration of the United Nations Conference on the Human
Environment (Principle 21), offer a widely-cited formulation that balances the interests of the State
of origin and potentially affected States:

             “States have, in accordance with the Charter of the United Nations and the
      principles of international law, the sovereign right to exploit their own resources
      pursuant to their own environmental and developmental policies, and the
      responsibility to ensure that activities within their jurisdiction or control do not cause
      damage to the environment of other States or of areas beyond the limits of national
      jurisdiction.” (Rio Principle 2.)

      8. The Court in the Pulp Mills case took an approach that synthesizes the competing rights
and responsibilities of two sovereign equals in respect of transboundary environmental harm, by
holding the State of origin to a standard of due diligence in the prevention of significant
transboundary environmental harm:

             “The Court points out that the principle of prevention, as a customary rule, has
      its origins in the due diligence that is required of a State in its territory. It is ‘every
      State’s obligation not to allow knowingly its territory to be used for acts contrary to
      the rights of other States’ (Corfu Channel (United Kingdom v. Albania), Merits,
      Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at
      its disposal in order to avoid activities which take place in its territory, or in any area
      under its jurisdiction, causing significant damage to the environment of another State.
      This Court has established that this obligation ‘is now part of the corpus of
      international law relating to the environment’ (Legality of the Threat or Use of
      Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29).” (Pulp

                                                 -3-

      Mills on the River Uruguay (Argentina v.                 Uruguay),     Judgment,    I.C.J.
      Reports 2010 (I), pp. 55-56, para. 101).

Thus, taking into account the sovereign equality and territorial sovereignty of States, it can be said
that, under customary international law, a State of origin has a right to engage in activities within
its own territory, as well as an obligation to exercise due diligence in preventing significant
transboundary environmental harm.

       9. The requirement to exercise due diligence, as the governing primary norm, is an obligation
of conduct that applies to all phases of a project (e.g., planning, assessment of impact, decision to
proceed, implementation, post-implementation monitoring). In the planning phase, a failure to
exercise due diligence to prevent significant transboundary environmental harm can engage the
responsibility of the State of origin even in the absence of material damage to potentially affected
States. This is why (as in Nicaragua v. Costa Rica) a failure to conduct an environmental impact
assessment can give rise to a finding that a State has breached its obligations under customary
international law without any showing of material harm to the territory of the affected State. If, at a
subsequent phase, the failure of the State of origin to exercise due diligence in the implementation
of a project causes significant transboundary harm, the primary norm that is breached remains one
of due diligence, but the reparations due to the affected State must also address the material
damage caused to the affected State. (For these reasons, I do not find it useful to draw distinctions
between “procedural” and “substantive” obligations, as the Court has done.)

       10. This obligation to exercise due diligence is framed in general terms, but that does not
detract from its importance. The question whether the State of origin has met its due diligence
obligations must be answered in light of the particular facts and circumstances. Of course, it is
possible that customary international law also contains specific procedural or substantive rules that
give effect to this due diligence obligation. To reach conclusions on the existence and content of
such specific rules, however, account must be taken of State practice and opinio juris. Absent
consideration of such information, the Court is not in a position to articulate specific rules, and the
rights and obligations of parties should be assessed with reference to the underlying due diligence
obligation.

     11. With this framework in mind, I turn next to some observations regarding environmental
impact assessment, notification and consultation.

                             ENVIRONMENTAL IMPACT ASSESSMENT

      12. In the Pulp Mills case, the Court supported its interpretation of a bilateral treaty between
the Parties by observing that:

      “it may now be considered a requirement under general international law to undertake
      an environmental impact assessment where there is a risk that the proposed industrial
      activity may have a significant adverse impact in a transboundary context, in
      particular, on a shared resource. Moreover, due diligence, and the duty of vigilance
      and prevention which it implies, would not be considered to have been exercised, if a
      party planning works liable to affect the régime of the river or the quality of its waters
      did not undertake an environmental impact assessment on the potential effects of such
      works.” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
      Reports 2010 (I), p. 83, para. 204.)

                                                -4-

       13. This statement is widely understood as a pronouncement that general (or customary)
international law imposes a specific obligation to undertake an environmental impact assessment
where there is a risk of significant transboundary environmental harm. I am not confident,
however, that State practice and opinio juris would support the existence of such a specific rule, in
addition to the underlying obligation of due diligence. This does not mean that I am dismissive of
the importance of environmental impact assessment in meeting a due diligence obligation. If a
proposed activity poses a risk of significant transboundary environmental harm, a State of origin
would be hard pressed to explain a decision to undertake that activity without prior assessment of
the risk of transboundary environmental harm.

      14. In Pulp Mills, the Court wisely declined to elaborate specific rules and procedures
regarding the assessment of transboundary environmental impacts, stating that

      “it is for each State to determine in its domestic legislation or in the authorization
      process for the project, the specific content of the environmental impact assessment
      required in each case, having regard to the nature and magnitude of the proposed
      development and its likely adverse impact on the environment as well as to the need to
      exercise due diligence in conducting such an assessment” (Pulp Mills on the River
      Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 83, para. 205).

       15. Today’s Judgment makes clear that the above-quoted passage from the Pulp Mills case
does not give rise to a renvoi to national law in respect of the content and procedures of
environmental impact assessment (as one of the Parties had asserted). Instead, the “[d]etermination
of the content of the environmental impact assessment should be made in light of the specific
circumstances of each case” (paragraph 104). Thus, the Court does not presume to prescribe
details as to the content and procedure of transboundary environmental impact assessment. This
leaves scope for variation in the way that States of origin conduct the assessment, so long as the
State meets its obligation to exercise due diligence in preventing transboundary environmental
harm.

                               NOTIFICATION AND CONSULTATION

       16. Today’s Judgment also addresses the asserted obligations of notification and consultation
in relation to significant transboundary environmental harm, stating that:

             “If the environmental impact assessment confirms that there is a risk of
      significant transboundary harm, the State planning to undertake the activity is
      required, in conformity with its due diligence obligation, to notify and consult in good
      faith with the potentially affected State, where that is necessary to determine the
      appropriate measures to prevent or mitigate that risk.” (Paragraph 104.)

       17. The Court does not provide reasons for its particular formulation of the obligations of
notification and consultation, which does not emerge obviously from the positions of the Parties or
from State practice and opinio juris. Both Parties assert that general international law requires
notification and consultation regarding activities which carry a risk of significant transboundary
environmental harm. However, the Parties do not present a shared view of the specific content of
such an obligation. For example, Nicaragua maintains that a duty to notify and consult only arises
if an environmental impact assessment indicates a likelihood of significant transboundary harm to
other States, whereas Costa Rica suggests that notice to the potentially affected State may be
required prior to undertaking an environmental impact assessment.

                                                 -5-

       18. Because each Party seeks to hold the other to these asserted requirements, neither has an
incentive to call attention to aspects of State practice or opinio juris that would point away from the
existence of particular obligations to notify or to consult. The Court is also ill-equipped to conduct
its own survey of the laws and practices of various States on this topic. (To arrive at an
understanding of United States federal law regarding environmental impact assessment in a
transboundary context, for example, one would need to study legislation, extensive regulations,
judicial decisions and the pronouncements of several components of the executive branch.)

       19. The Parties do not offer direct evidence of State practice regarding notification and
consultation with respect to transboundary environmental impacts, but instead refer the Court to
international instruments and decisions of international courts and tribunals. The Court’s
formulation of specific obligations regarding notification and consultation bears similarity to
Articles 8 and 9 of the International Law Commission’s 2001 Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities (ILC Yearbook, 2001, Vol. II, Part Two,
pp. 146-147). Although these widely-cited Draft Articles and associated commentaries reflect a
valuable contribution by the Commission, their role in the assessment of State practice and opinio
juris must not be overstated. One must also be cautious about drawing broad conclusions regarding
the content of customary international law from the text of a treaty or from judicial decisions that
interpret a particular treaty (such as the Judgment in Pulp Mills). The 1991 Convention on
Environmental Impact Assessment in a Transboundary Context (the Espoo Convention), for
example, contains specific provisions on notification and consultation. The treaty was drafted to
reflect practices in Europe and North America, and, although it is now open to accession by States
from other regions, it remains largely a treaty among European States and Canada. When a broader
grouping of States has addressed environmental impact assessment, notification and consultation,
as in the 1992 Rio Declaration, the resulting formulation has been more general (see Rio
Principle 19, which calls for the provision of “prior and timely notification and relevant
information” to potentially affected States and consultations with those States “at an early stage and
in good faith”).

       20. For these reasons, whereas I agree that a State’s obligation under customary international
law to exercise due diligence in preventing significant transboundary environmental harm can give
rise to requirements to notify and to consult with potentially affected States, I do not consider that
customary international law imposes the specific obligations formulated by the Court. I note two
particular concerns.

       21. First, the Judgment could be read to suggest that there is only one circumstance in which
the State of origin must notify potentially affected States — when the State of origin’s
environmental impact assessment confirms that there is a risk of significant transboundary harm. A
similar trigger for notification appears in Article 8 of the International Law Commission’s
2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities. However,
due diligence may call for notification of a potentially affected State at a different stage in the
process. For example, input from a potentially affected State may be necessary in order for the
State of origin to make a reliable assessment of the risk of transboundary environmental harm. The
Espoo Convention (Article 3) calls for notification of a potentially affected State before the
environmental impact assessment takes place, thereby allowing that State to participate in that
assessment.

                                                -6-

      22. The facts in the Nicaragua v. Costa Rica case illustrate the importance of notification
before the environmental impact assessment is complete. Only Nicaragua is in a position to take
measurements or samples from the San Juan River, or to authorize such activities by Costa Rica.
Consequently, it is difficult to see how Costa Rica could conduct a sufficient assessment of the
impact on the River without seeking input from its neighbour.

       23. Secondly, there are topics other than measures to prevent or to mitigate the risk of
significant transboundary harm as to which consultations could play a role in meeting the State of
origin’s due diligence obligation, such as the parties’ respective views on the sensitivity of the
environment in the affected State or the procedural details of an environmental impact assessment
process.

       24. Because the Court today reaffirms that the fundamental duty of the State of origin is to
exercise due diligence in preventing significant transboundary environmental harm, I do not
understand the Judgment to mean that a State is obligated to notify a potentially affected State only
when an environmental impact assessment finds a risk of significant transboundary environmental
harm, nor do I consider that the Court has excluded the possibility that the due diligence obligation
of the State of origin would call for notification of different information or consultation regarding
topics other than those specified by the Court. The question whether due diligence calls for
notification or consultation, as well as the details regarding the timing and content of such
notification and consultation, should be evaluated in light of particular circumstances.

                                                           (Signed)    Joan E. DONOGHUE.

                                           ___________


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NORTH SEA CONTINENTAL SHELF CASE
(DENMARK/FEDERAL REPUBLIC OF GERMANY)

ORDER OF 1 MARCH 1968

1968

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER DU NORD
(DANEMARK/REPUBLIQUE FEDERALE D’ALLEMAGNE)

ORDONNANCE DU I: MARS 1968
Official citation:

North Sea Continental Shelf (Denmark/Federal Republic of Germany),
Order of 1 March 1968, I.C.J. Reports 1968, p. 3.

Mode officiel de citation:

Plateau continental de la mer du Nord (Danemark/République fédérale
d’ Allemagne ), ordonnance du Ie? mars 1968, C.I.J. Recueil 1968, p. 3.

Ne de vente: 19

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1968

ier mars 1968

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER DU NORD

(DANEMARK/REPUBLIQUE FEDERALE D’ALLEMAGNE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l'article 48 du Statut de la Cour et l’article 37 du Règlement de la
Cour,

Vu l’ordonnance du 8 mars 1967 fixant au 21 août 1967 la date d’expi-
ration du délai pour le dépôt du mémoire de la République fédérale
d'Allemagne et au 20 février 1968 celle du délai pour le dépôt du contre-
mémoire du Danemark et réservant la suite de la procédure;

Considérant que le mémoire de fa République fédérale d’ Allemagne et
le contre-mémoire du Danemark ont été déposés dans les délais ainsi
prescrits;

Après s'être renseigné auprès des Parties,

Fixe comme suit la date d'expiration des délais pour la suite de la
procédure:

Pour le dépôt de la réplique de la République fédérale d’Allemagne,
‘le 31 mai 1968;

Pour le dépôt de la duplique du Danemark, le 30 août 1968.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de
la Paix, à La Haye, le premier mars mil neuf cent soixante-huit, en trois

4

1968
jer mars
Rôle génér
-n° 51
PLATEAU CONTINENTAL DE LA MER DU NORD (ORDONNANCE | III 68) 4

exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement du Royaume du
Danemark et au Gouvernement de la République fédérale d'Allemagne.

Le Président,
(Signé) J. L. BUSTAMANTE R.
Le Greffier,
(Signé) S. AQUARONE.


ESSAIS NUCLÉAIRES (ORDONNANCE 20 XII 74) 537

tence de la Cour, et il n’a pas non plus invoqué un titre quelconque de
juridiction vis-à-vis de la France dans sa requête à fin d’intervention.

La Cour aurait dû statuer sur cette requête elle-même comme le lui
prescrit l’article 62 de son Statut et aurait dû, à mon avis, la rejeter pour
le motif que la condition de réciprocité qui accompagne l’acceptation de la
juridiction obligatoire de la Cour n’était nullement remplie entre Fidji et
la France.

M. DILLARD et sit Humphrey WALDOCK, juges, font la déclaration
commune suivante:

[Traduction ]

L’ordonnance dit que la Cour, ayant considéré ia demande de la
Nouvelle-Zélande comme désormais sans objet, n’a plus aucune suite à
donner à cette demande et qu’en conséquence il n’existe désormais plus
d’instance sur laquelle une intervention puisse se greffer. De ce fait, d’après
la Cour, la requête du Gouvernement fidjien tombe.

La conclusion découle logiquement de la prémisse. En tant que mem-
bres de la Cour, liés par la décision rendue en l'affaire des Essais nucléaires,
nous sommes donc tenus de voter pour l’ordonnance. II n’est manifeste-
ment pas possible que le Gouvernement fidjien intervienne à l’instance dès
lors que, en vertu de l’arrêt de la Cour, aucune instance n’existe.

Cela dit, nous nous sentons l’obligation de dire que nous n’acceptons
pas la prémisse sur laquelle repose la conclusion de la Cour. Comme
l’indique de façon détaillée l’opinion dissidente que nous présentons avec
nos collègues, nous ne souscrivons pas à la décision de la Cour selon
laquelle il n’y a aucune suite à donner à la demande formulée par la
Nouvelle-Zélande contre la France.

Si les vues de la minorité l’avaient emporté dans l’affaire Nouvelle-
Zélande c. France, il aurait fallu examiner la question de l’intervention de
Fidji afin de déterminer s’il existait un lien juridictionnel suffisant entre
Fidji et la France pour justifier l'intervention de Fidji en vertu de l’ar-
ticle 62 du Statut de la Cour. De plus, on aurait dû selon nous donner à
Fidji la possibilité de se faire entendre sur la question avant de prendre
une décision.

Il résulte de ce qui précède que, tout en nous estimant tenus de voter
pour l'ordonnance que rend la Cour, nous avons pour ce faire des motifs
qui diffèrent à certains égards de ceux que la Cour a avancés.

M. JIMÉNEZ DE ARÉCHAGA, juge, fait la déclaration suivante:

[Traduction]

J'ai voté pour le rejet de la requête par laquelle Fidji demandait à
intervenir en vertu de l’article 62 du Statut, mais pour un autre motif que

6
ESSAIS NUCLÉAIRES (ORDONNANCE 20 XII 74) 538

celui sur lequel se fonde l’ordonnance, à savoir que Fidji, qui n’est pas
partie à l’Acte de 1928, ni au système de la clause facultative, n’a invoqué,
dans sa requête, aucun lien de juridiction avec la France.

Pour pouvoir intervenir en application de l’article 62 du Statut en vue
de faire valoir un droit contre le défendeur, un Etat doit se trouver dans
une situation qui lui permettrait d’attraire lui-même le défendeur devant
la Cour. |

Les rédacteurs de l’article 62 du Statut sont partis du principe que
PEtat intervenant aurait son propre titre de juridiction vis-à-vis du défen-
deur, car à l’époque le projet de Statut envisageait une juridiction obliga-
toire pour tous. Quand ce système a été remplacé par celui de la clause
facultative, aucun changement n’a été apporté à l’article 62, mais, aux
fins de son interprétation et de son application, celui-ci doit être considéré
comme restant soumis à la même condition. S’il en allait autrement, il en
résulterait des conséquences fâcheuses et incompatibles avec des prin-
cipes fondamentaux tels que ceux de légalité des parties devant la Cour
ou de la réciprocité rigoureuse des droits et des obligations entre les Etats
qui acceptent sa compétence. Un Etat qu’un autre Etat ne peut pas
assigner comme défendeur devant la Cour ne peut pas non plus se pré-
senter comme demandeur ni comme partie intervenante contre ce même
Etat, avec la faculté de soumettre des conclusions indépendantes à
Pappui d’un intérêt propre. À mon avis, la disposition de l’article 69,
paragraphe 2, du Règlement de la Cour qui exige que soient exposées les
«raisons de droit et de fait justifiant l’intervention » doit s’entendre, en
des circonstances comme celles de ia présente espèce, comme imposant
aussi obligation d'établir un lien juridictionnel indépendant entre l’inter-
venant et le défendeur.

Sir Garfield BARWICK, juge ad hoc, fait la déclaration suivante:
[Traduction]

J'ai voté pour l’ordonnance relative à la requête de Fidji à fin d’inter-
vention dans la présente instance non pas en raison des arrêts rendus par
la Cour dans les affaires Australie c. France et Nouvelle-Zélande c. France
mais uniquement pour les motifs exposés par MM. Jiménez de Aréchaga
et Onyeama dans leurs déclarations concernant l’ordonnance relative à
Fidji, que j’approuve entièrement.

(Paraphé) M.L.
(Paraphé) S.A.


52

DÉCLARATION DE M. KOJEVNIKOV

Le juge F. I. Kojevnikov déclare ne pouvoir se rallier ni aux
motifs, ni au dispositif de l’arrêt sur le ret et le 2™e points, car il
estime que dans cette affaire la Cour n’est pas compétente d'examiner
et de juger le différend au fond.

Vu que la majorité s’est reconnue compétente pour juger cette
affaire au fond, le juge F. 1. Kojevnikov trouve nécessaire de dé-
clarer qu'il ne peut pas non plus se rallier aux motifs et au dispositif
de l'arrêt sur le 3™¢ point, car à son avis le Portugal n’a pas possédé
et ne possède pas de droits souverains sur Dadra et Nagar-Aveli, et
qu'il n’a pas eu et n’a pas de droit de passage sur territoire indien
vers ces régions et de l’une à l’autre.

En conséquence, le juge F. I. Kojevnikov, sans être d'accord
avec tous les motifs, ne se rallie à l'arrêt que le sur le 4™* point
ainsi que sur le 5™¢ point, sans cependant reconnaître au Portugal
un droit de passage à travers le territoire indien, y compris pour les
personnes privées, les fonctionnaires civils et les marchandises en
général.

(Signé) F. I. KojEvNnixkov.


PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SÉRIE B — N° 17
Le 31 juillet 1930

RECUEIL DES AVIS CONSULTATIFS

QUESTION DES «COMMUNAUTES »
GRECO-BULGARES

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B.—No. 17
July 31st, 1930

COLLECTION OF ADVISORY OPINIONS

THE GRECO-BULGARIAN
“COMMUNITIES”

LEYDEN
A. W. SIJTHOFF’S
PUBLISHING COMPANY
1930

LEYDE
SOCIÉTÉ D’EDITIONS
A. W. SIJTHOFF
1930

PERMANENT COURT OF INTERNATIONAL JUSTICE

EIGHTEENTH (ORDINARY) SESSION

Present :

MM. ANZILOTTI, President,
HUBER, Vice-President,
LODER,
NYHOLM,

DE BUSTAMANTE,
ALTAMIRA,

ODA,

PESSÔA,
FROMAGEOT,

Sir CECIL HURST,
M. YOVANOVITCH, Deputy- Judge,
MM. CALOYANNI, Judges ad hoc.

PAPAZOFF,

Judges,

ADVISORY OPINION No. 17.

INTERPRETATION OF THE CONVENTION BETWEEN
GREECE AND BULGARIA RESPECTING RECIPROCAL
EMIGRATION, SIGNED AT NEUILLY-SUR-SEINE
ON NOVEMBER 27th, 1919
(QUESTION OF THE ‘“COMMUNITIES”).

On January 16th, 1930, the Council of the League of
Nations adopted the following Resolution +:

“The Council of the League of Nations,

Having considered the letter addressed by the President
of the Greco-Bulgarian Mixed Commission to the Secretary-
‘General of the League on December r9th, 1929, requesting

1930.
July 31st.
File F. c. XIX.
Docket XVIII. 1.

1 English text transmitted by the Secretary-General of the League of

Nations.
ADVISORY OPINION No. 17 5

the Secretary-General, in the name of the Bulgarian and
Greek Governments, to submit to the Council of the
League a request that an advisory opinion be obtained
from the Permanent Court of International Justice, for
the use of the Mixed Commission, with regard to the
interpretation of those clauses of the Greco-Bulgarian
Convention signed on November 27th, 1919, which relate
to’ communities :

Requests the Permanent Court of International Justice
to give an advisory opinion covering the questions formu-
lated in the annexes to the letter from the President of
the Mixed Commission, which constitute the three annexes
to this Resolution.

The Council invites the Bulgarian and Greek Govern-
ments and the Mixed Commission to. hold themselves at
the disposal of the Court for the purpose of furnishing it
with any necessary documents and explanations.

The Secretary-General is authorized to submit the
present request to the Court, together with all documents
relating to the question, to explain to the Court the
action taken by the Council in the matter, to give any
assistance required in the examination of the case, and, if
desirable, to take measures to be represented before the
Court.”

The annexes to this Resolution were as follows!:

“Annex I,
List of questions drawn up by the Mixed Commission.
September 14th, 1929.

1.—What is the criterion to be applied to determine
what is a community within the meaning of the Conven-
tion, inter alia under Article 6, paragraph 2?

2.—What conditions must be satisfied in order to cause
the Mixed Commission provided for in the Convention to
dissolve a community such as is meant by the Convention ?

3.—What is to be understood by such dissolution?
What relations are to be dissolved? What is the period
by reference to which the existence of -such relations is
to be established ?

4.—What attitude is to be observed by the Mixed
Commission in cases where it does not succeed in dis-
covering the ayants droit (persons entitled) referred to. in
Article Io, paragraph 2, of the Convention ?

1 English text transmitted by the Secretary-General of the League of
Nations.
ADVISORY OPINION No. 17 6

Annex II.
List of questions drawn up by the Bulgarian Government.
December 17th, 1929.

1.—Seeing that the Convention deals with voluntary
emigration, and that a community, being a legal fiction,
only exists in virtue of the law of the country in question,
whose frontiers it cannot transcend, can it be admitted
that a community. may emigrate in virtue of the Conven-
tion, or does it not logically follow that, where the Con-
vention speaks of the property of communities, this must
be understood to mean any private property rights which
emigrants may eventually possess in respect of such
property ?

2.—The Mixed Commission, being an executive body
entrusted with the duty of facilitating emigration and
liquidating existing rights of emigrants, and not with the
creation of fresh rights, what body would be competent
to order the eventual dissolution of a community, and
what laws would such body be required to observe in
such a case?

3.—Whichever views be adopted, i.e. whether the case.
is considered to be one of liquidation merely of emigrants
property rights over the property of the communities or
one of liquidation in general of the property of the
communities, must it not on either hypothesis be recog-
. nized that the liquidation must extend to the private
property of the moral person which is constituted by
a commune, a commune being the typical example of
a community ?

Annex ITI,
List of questions drawn up by the Greek Government.

December 18th, 1929.

_ I.—What is, in view of their origin and development,
‘the nature of the communities referred to in Article 6,
paragraph 2; and Article 7 of the Convention of Neuilly ?
Do they enjoy, in. law or in. fact, a personality. which
confers upon them some of the attributes of a moral
person, and in particular the right to possess a patrimony
separate from that of their members ?

2.—Do the communities possess the characteristic of
being connected as minorities and racial groups with the
ADVISORY OPINION No. 17 7

country in which the majority of the population is of
the same race? What are eventually the consequences,
as regards the allocation of their property, where their
members, as contemplated by Article 10 of the Conven-
tion, are dispersed or absent (in the legal sense of the
term) ?

3.—On what conditions should the dissolution of the
communities be made to depend?

4—Does the Convention of Neuilly deal with com-
munities dissolved before its entry into force? Should
the same rules be applied as regards the dissolution of
these communities and the allocation of the proceeds of
the liquidation of their property as apply in the case of
the communities referred to in Article 7 of the Con-
vention ?- |

5.—If the application of the Convention of Neuilly is
at variance with a provision of internal law in force in
the territory of one of the two signatory Powers, which
of the conflicting provisions should be preferred—that of
the law or that of the Convention ?”

In pursuance of the Resolution above mentioned, the Sec-
retary-General submitted to the Court, on January 17th, 1930,
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 January 16th, -
1930, 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
January r6th, 1030.

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.”

The Request was accompanied by a file of documents which
the President of the Greco-Bulgarian Mixed Emigration Com-
mission addressed to the Secretary-General of the League of
Nations, together with a letter to the following effect, dated
December 19th, 1929 !:

1 English text transmitted by the Secretary-General of the League of
Nations. :
ADVISORY OPINION No. 17 8

“Athens, December roth, 1929.
Sir,

In the fulfilment of the task which falls to it, under the
Convention between Greece and Bulgaria of November 27th,
1919, concerning reciprocal emigration, the Greco-Bulgarian
Mixed Commission has encountered certain difficulties regarding
the interpretation to be placed on the provisions of the said
Convention relating to communities.

The laborious discussions which have taken place in the.
Mixed Commission upon this question, and the importance
which the two High Contracting Parties have declared that
they attach to it, have led the Mixed Commission to consider
the expediency of obtaining an opinion from the Permanent
Court of International Justice.

At the 519th meeting, the two Parties announced through
their delegates on the Mixed Commission that they agreed to
entrust to the Commission the submission to the Council, on
their behalf, of a request to the effect that such an advisory
opinion should be obtained.

The efforts of the Mixed Commission, though they did .not
result in the preparation of a list of questions satisfactory
to the two Parties, enabled certain questions to be formulated
which, in the opinion of the neutral members of the Com-.
mission, seem to cover the chief difficulties encountered.

In addition to these questions, however, each of the Parties
has seen fit to formulate others, and this it has done with the
full consent of the other Party.

You will find in Annexes 1, 2 and 3, the various questions ©
thus presented.

In my capacity as acting President, I therefore have the
honour, on behalf of the two Governments, to ask you to be
so good as to lay before the Council of the League of Nations
a request to the effect that an advisory opinion be obtained
from the Court for the use of the Mixed Commission.

Independently of the question of the form in which the
Council may see fit to ask for this opinion, I venture, on
behalf of the Mixed Commission, to express the hope that the
Council will be so good as to consider the present request
during its next session.

I feel that I should add that in resorting to this course,
it is not the intention of the Commission in any way to
invalidate the powers and jurisdiction assigned to it by the
Convention of Neuilly.

You will find annexed to this letter the minutes of the
above-mentioned meeting, and in general all information
bearing upon the quéstion as a. whole.
ADVISORY OPINION No. I7 9

The Mixed Commission holds itself entirely at the disposal
of the Council of the- League of Nations and of the Court to
supply any further information.

(Signed) JAMES DE- REYNIER,
President.”

In conformity with Article 73, paragraph x, 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. The Registrar further sent to the Bulgarian and Greek
Governments, which were regarded by the President of the
Court—the latter not being in session—as likely, in accordance
with the terms of Article 73, paragraph 2, of the Rules, to
be able to furnish information on the questions in regard to
which the Court’s opinion was sought, a special and direct
communication informing them that the Court was prepared to
receive from them written statements and, if desired, to hear
oral statements made on their behalf at a public hearing to
be held for the purpose. By an Order made on January 24th,
1930, the President of the Court fixed February 28th, 1930,
as the date by which written statements, if any, were to be
filed with the Registry of the Court; at the request of the
Greek Government, this time was extended by means of an
Order dated February 4th, 1930, until March 17th, 1930. By
that date, the two Governments concerned had deposited writ-
ten statements with the Registry. Subsequently, on March 21st,
1930, the Registrar informed the Agents of these Governments
that it was not the intention of the Court to call for the sub-
mission of further statements-in reply to those which had
been. filed, but that the Court would be prepared to receive
such statements if presented by April 24th, 1930; before
that date, each Government sent to the Registry written
observations upon the statement already filed on behalf of the
other.

In accordance with the Resolution of January 16th, 1930,
the Council of the League of Nations had asked the Govern-
ments and the Commission for certain additional information. ©
Furthermore, the acting President of the Commission informed
the Court, by a letter dated June zoth, that he had come to
The Hague in order to place himself at the Court’s disposal.
ADVISORY OPINION No. 17 10

The Court in the course of public sittings held on
June igth, 2oth, 21st, 23rd, 24th, 26th, 27th and 30th and on
July ist, 1930, heard the oral arguments of M. Théodoroff,
Agent, and MM. van Hamel and Verzijl, Counsel, on behalf
of the Bulgarian Government, and of His Excellency M. Politis,
Counsel on behalf of the Greek Government ; at the conclusion
of the ‘hearings it also, by a special decision, accepted short
written statements addressed to it by the Agents of the two
Governments. . |
- Lastly, by an Order dated June 30th, 1930, the Court invited
the aforesaid Agents and. the President of the Mixed Com-
mission to reply to certain questions formulated therein ; these
replies were given by Colonel Corfe, President of the Mixed
Commission, by M. Théodoroff, Agent for the Bulgarian Govern-
. ment, and by M. Coutzalexis, Agent for the Greek Govern-
ment, at the hearing on July 1st. :

In addition to the statements and observations of the
Governments concerned, further written information furnished
by them and by the Mixed Commission at the Court’s request,
as also the documents transmitted to it by the Secretary-Gen-
eral of the League of Nations, the Court has had before it
numerous documents filed at the hearing either by the repre-
sentatives of the said Governments or by the President of the
Mixed Commission 1.

In. view of the fact that neither of the Governments con-
cerned had upon the bench a judge of its nationality and
that—the ‘request to the effect that an advisory opinion be
obtained” having, according to the terms of the letter addres-
sed to the Secretary-General of the League of Nations on
December 1oth, 1929, by the President of the Mixed Commis-
sion, been submitted ‘‘on behalf of the two Governments’—
the question related to an existing dispute between two
States, within the meaning of Article 71, paragraph 2, of the
Rules, the attention of the Parties to this dispute, namely,
the Bulgarian and Greek Governments, was drawn to their
right under Article 31 of the Statute each. to choose a judge
of their nationality to sit in the case. The two Governments
availed themselves of this right.

1 See annexed list.
ADVISORY OPINION No. I7 IT
I.

The circumstances which led the Council to submit to the
Court the above-mentioned Request for an opinion may be
summarized as follows :

Following upon the entry into force of the Greco-Bulgarian
Convention respecting reciprocal emigration on August gth,
1920, and in pursuance of a Resolution of the Council of the
League of Nations dated September 2oth, 1920, the Mixed
‘Emigration Commission, which was provided for in Articles 8
and 9 of the Convention !, assembled at Geneva on December 18th,
1920. Almost at the beginning of its sittings, it took up
the question of the interpretation of the Emigration Conven-
tion, the provisions of which it examined, article by article,
in the course of the 6th to the 48th meetings (December 24th,
1920— July xrith, 1921); a very considerable part of this
time—especially on and after February 17th (28th meeting) —
was devoted to the discussion of Article 12 of the Convention.
This article, which the Commission had considered very dif-
ficult to construe, formed the subiect of a detailed report
which had been drawn up by the neutral member of
the Commission and the conclusions of which were adopted
by the Commission on July xrith (48th meeting). On
January oth, 1921 (15th meeting), the question of ‘the
preparation of rules was raised in connection with Article 9;
this work however was not seriously taken in hand until later
(January-March 1922); it was completed on March 4th, 1922
(96th meeting), when the Commission ‘unanimously adopted
“Rules for the reciprocal and voluntary emigration of the
Greek and Bulgarian Minorities’. It officially communicated
these Rules to the two Governments concerned on March 6th,
1922. Not until this was done did the Commission undertake
the practical application of the Convention.

During the preliminary stages of its work and the early
years of its existence, the Commission was led to adopt, more
or less incidentally, a number of decisions affecting the inter-
pretation of the Convention with respect to the position of
communities. These decisions, which are enumerated in the

1 For text of the Convention, see list in Annex?: |
ADVISORY OPINION No. 17 12

written statement sent by the Commission to the Court at
the latter’s request, related amongst others to the following
points :

(1) interpretation of the word “persons’ in Article 12
of the Convention ;

(2) liquidation of community property held by an indivi-
dual in his own name;

(3) method of representation of communities before the
Mixed Commission, more particularly for the purposes
of a claim for liquidation ;

(4) movable property of communities which may be taken
away by emigrants ; |

(5) provisional measurement and valuation of the immov-
able property of communities ;

(6) the drawing up and delivery of the instruments of
payment in connection with the liquidation of community
property erroneously considered to be the property of
individuals ;

(7) interpretation of the conception of a “community” in
relation to an administrative commune.

Meantime, and in view of the fact that the documents
relating to a number of cases of the verification of the rights
of ownership in and of the valuation of certain immovable
property belonging to communities had reached it, the Commis-
sion in August 1926 put to the representatives of the two
Governments concerned questions relating to the following
points bearing on the interpretation of Articles 6 and 7 of
the Convention :

(x) When is a community to be regarded as “dissolved”
under the terms of Article 6? |

(2) To whom should the proceeds of the liquidation of a
community considered as “dissolved’’ be paid?

(3) What movable property may be carried away in the event
of partial emigration?

On these points, notes and written statements were presented to
the Mixed Commission by the Bulgarian and Greek representatives.
It was in these circumstances that the Commission decided ‘to
instruct its President to put to the Legal Section of the League of
ADVISORY OPINION No. I7 I3

Nations, on behalf of the Mixed Commission, such questions
as he might consider advisable’. On the basis of the -
opinions obtained in this way and from other sources, the
neutral members of the Commission, in August 1928, after
a period of direct negotiation between the two Governments
concerned, laid before the representatives of these Govern-
ments two interpretation of the clauses of the Convention
relating to the points at issue. The Bulgarian and Greek
members of the Commission expressed their views—by |
means of letters to the President (meeting of August 24th,
1928)—with regard to the proposals in question, the Greek
member accepting the second and the Bulgarian member
adopting the first without being able to agree upon a solution
acceptable to both Parties. In these circumstances, the
President of -the Commission, on September 5th, 1928,
addressed to the Bulgarian and Greek Governments a letter
in which he suggested for the first time that it might per-
haps be useful if the Permanent Court of International Justice
could be asked to give an advisory opinion upon the diffi-
culties encountered by the Commission with regard to the
interpretation to be placed on the clauses of the Emigration
Convention relating to communities. The. suggestion, which
remained for a considerable time without response, was put
forward again, more particularly in a letter of July 3r1st,
1929.

A long series of discussions in the Mixed Commission
followed; finally, at the beginning of December 1929, they
culminated in the sending by the two Governments to the
President of written declarations whereby they mutually
consented in principle to a procedure consistihg in obtaining
an advisory opinion from the Court; this consent, however,
was given on both sides subject to an express reservation
with regard to the final form to be given to the questions
to be submitted to the Court. In pursuance of a formal
decision of the Commission, its President prepared and sub-
mitted. to his colleagues a draft list of questions. As this
list was not accepted by the representatives of the two
Governments concerned, it was agreed that the latter might
send to the Commission any additions which they wished to
make to the questionnaire. Herein lies the origin of the fact
ADVISORY OPINION No. I7 T4

that first the Council and subsequently the Court had before
them three lists of questions, which constitute the question-
naires drawn up by the Mixed Commission, the Bulgarian
Government and the Greek Government respectively and
annexed to the Council’s Resolution. Those of the two national
members were submitted at the meeting of December 18th,
1929. At the same meeting the Commission approved, firstly
the letter—reproduced in the early part of the present Opinion
—sent on the following day by the President of the Commis-
sion to the Secretary-General of the League of Nations, in
order to set in motion the procedure for obtaining an opinion,
and secondly the list of documents relating to the matter,
which the Secretary-General would be requested to transmit
to the Court. .

At a previous meeting (December 3rd), the. President had
already submitted to the Commission a statement indicating
the procedure which he thought should be followed—or which,
in his view, would be followed—for the purpose of obtaining
the opinion of the Court. This statement seems to have been
officially transmitted to the two Governments concerned on
behalf of the Commission. This document, after analysing the
relevant provisions of Article 73 of the Rules of Court, says
that ‘the [written] statements of the two Parties should
conclude with their respective submissions. In these submis-
sions, each Party should enumerate the submissions which it
wishes the Court to confirm.” Leaving aside the question of
the correctness of the opinion thus expressed in relation to
advisory procedure, it is to be observed that the two Govern-
ments concerned have conformed to it: the Memorial filed by
each of them is in fact terminated by a series of ‘“submis-
sions” containing the replies proposed by them to the various
questions upon which the Court’s opinion is sought. These
submissions may usefully be reproduced here as authoritative
summaries of the opposing contentions:

Submissions of the Bulgarian Government.

“Tt is submitted :

I. (a) that the conception of a community within the
meaning of the Convention between Greece and Bulgaria
ADVISORY OPINION No. 17 15

respecting reciprocal emigration signed at Neuilly-sur-Seine on
November 27th, 1919, is to be understood in the French
sense of the expression “corps et communautés”, that is to
say that it covers associations with an ideal aim and
‘foundations’ enjoying juridical personality, provided that
they present exclusively the characteristics of a racial or
religious minority. Such are the various religious, educational or
philanthropic establishments (religious congregations, churches,
convents, monasteries, schools, hospitals, alms-houses, etc.)
and communes, the population of which presents the char-
acteristics of a minority, in so far as their private property
is concerned ;

(0) that the minority and racial characteristics of com-
munities should be determined not only with reference to their
designation and nominal affinity, but also with regard both
to their origin and to the character of the bulk of the local
orthodox population which contributed to their creation or
maintenance and to the historical fact that until 1870 all
inhabitants of the Ottoman Empire of Greek orthodox religion
(Greeks, Bulgars, Serbs, Viachs, etc.) were subject, as regards
both their personal and spiritual status, to the authority of
the Greek Patriarch of Constantinople and were all called
“Greeks” (Roum mullet) ; | |

(c) that communities, as juridical persons, are not
entitled under the Convention to benefit by the provisions
respecting emigration and are not, as such, covered by the
conception of ‘emigrants’; only their members who have
exercised in due form the right to emigrate can claim this
character ;

2. (a) that a community, can only be dissolved when
all or nearly all its members have exercised the right to
emigrate ;

(b) that the Convention only contemplates the dissolution
of a community as the result of the emigration of its mem-
bers, and not for any other reason ;

(c) that the expression “members” of a community is to
be understood as meaning not. only its directors and person-
nel but also all the inhabitants belonging to the minority,
in the locality served by the community, who, directly or
indirectly, contribute to its support or administration; that
only members. who have duly exercised the right to emigrate
should be taken into account ;

(d) that the Convention does not apply to communities
dissolved before its entry into force ; |

(e) that with regard to the dissolution of communities
and, in general, the exercise of the right to emigrate, the
provisions of the Convention should prevail over laws and

regulations of the country conflicting with them; but that |
ADVISORY OPINION No. I7 16

in all questions concerning the substance of the law to be
applied—the existence or constitution of communities, the
nature, particulars and extent of rights to property which
it is sought to assert in connection with emigration, the
methods of establishing such rights, etc.,—the local legislation
in force, under which these rights have been acquired or
created, is alone applicable ;

(f) that the Mixed Commission has no power to pronounce
the dissolution of a community except on account of the
emigration of its members and then only in the case of total
emigration ;

3. (a) that by “dissolution” is to be understood the disso-
lution of the legal relations resulting from joint patrimonial
interests which unite the members of the community, if,
as a result of such dissolution, the emigrant members are
entitled to claim a portion of the property of the community,
either by reason of the division of the property (an extremely
rare case) or in respect of individual rights over such prop-
erty; that the moment in time by reference to which these
rights are to be determined is the time at which the emigration
took place ;

(2) that only property “which is the subject of commercial
exchange capable of private ownership and of being the
subject of private rights, is liable to liquidation ;

(c) that only members who have duly exercised the right
to emigrate and who are in a position to assert pecuniary
rights over the property of a community are entitled to apply
for its dissolution; that the delegates of States are not
entitled to apply for it and that the Mixed Commission
has no power to pronounce it ex officio;

4. (a) that the proceeds of the liquidated property of a
dissolved community must be handed over to the members
who have duly exercised the right to emigrate and have
submitted applications for liquidation—of course within the
limits of their rights as specified above ;

(b) that any surplus should revert to the State which has
sovereignty over the territory in which the liquidated property
of the dissolved community is situated.”

Submissions of the Greek Government.
“It is submitted :

I. With regard to the definition of the term “communities” :

I. that the criterion of the conception of a community
within the meaning of the. Convention, inter alia within
the meaning of Article 6, paragraph 2, is that it must
ADVISORY OPINION No. 17 17

be a group of persons of the same religion and race, must
be of a character both religious and national and must be
designed to serve the common interests of its members in
regard to religion, education and charity; and that the
question whether such a community still exists or has existed
in the past is a question of fact to be decided in each case
in accordance with the relevant historical data ;

2. that the community in the sense of the Convention

bears no relation whatever to the commune, from which
it differs fundamentally in character, purpose and com-
position ;
. 3. that the community within the meaning of the
Convention is a body endowed in law and in fact, or in
fact only, with the character of a juridical person, capable
of possessing rights and of being bound by its own obliga-
tions and of possessing property distinct from that of ist
members ;

4. that the community within the meaning of the Conven-
tion possesses essentially minority and racial character-
istics linking it to the State to which it is nationally
akin,

© IL. With regard to the conditions for the dissolution of com-
munies :

x. that the dissolution of communities, in the sense of
the Convention, is the regularization in law of a situation
already existing in fact ;

: that it is subject to one condition, necessary but suffcient,
namely, the emigration in the future or in the past of the
members of the community in question ;

2. that the members of the community in question,
whose emigration is necessary for the dissolution of the
community, must be understood to mean persons who
have really formed. part of the racial minority of which this
community was the national organ ;

that the number of emigrants or emigrated persons is, for
the purposes of the dissolution of the community, a matter
of complete indifference. On the other hand, what is
essential is to ascertain whether the community in ques-
tion can now continue to fulfil its original purpose, namely,
to serve as national organ for the racial minority which
established it ; | |

3. that it is not for the Commission to pronounce the
dissolution of a community, but simply to ascertain whether
emigration has in fact taken place; if it has, it necessarily
involves the dissolution in law of any community already
dissolved in fact ; : |
ADVISORY OPINION No. 17 18

4. that since the dissolution of communities is not effected
by a pronouncement but follows automatically upon the
fulfilment of the condition upon which the Convention is
made dependent, there is no need to consider on what laws
a pronouncement of dissolution should be based ;

that the laws of the country in the territory of which the
community to be dissolved has functioned cannot constitute
any hindrance to its dissolution; that if in regard to this
point, or In any other respect, they conflict with the Conven-
tion, they are to be regarded as of no effect.

Ill. With regard to the consequences of the dissolution of
communities :

1. that the relations to be dissolved by the dissolution of a
community are those which existed in law up till that date
between the community as a juridical person and, on the
one hand, its members who can no longer expect from it
the services which it formerly rendered them and who will
be entitled to benefit by the liquidation of its property,
and, on the other hand, the territorial State, which will
be released from the treaty obligations which it had previously
assumed in relation to the community and will become the
owner of its immovable property upon payment to the Com-
mission of the value of such property;

2. that when the Convention speaks of the property of
communities, it does not mean private patrimonial rights
which emigrants might in certain circumstances possess im re
aliena in respect of such property, but. the whole of the
movable and immovable property included in the patrimony
which these communities possessed as juridical persons ;

3. that in order to decide what relations are to be severed

in the event of the dissolution of a community, the moment
in time to be taken is that at which the dissolution in law ;
of the community takes place, and not that of its dissolution
in fact which may have occurred in the past ;
. 4. that the Convention applies to communities dissolved in
fact before its entry into force. As regards such communities
the rules to be applied as regards their dissolution in law are
the same as those applicable to the communities referred to
in Article 7 of the Convention.

IV. With .vegard to the allocation of the proceeds of the
liquidation of communities :

1. that if the Mixed Commission does not succeed in dis-
covering the possessors of rights im vem to the liquidated
property of a dissolved community, it must allocate the value
of such property to the State to which the said community
is racially akin ;
ADVISORY OPINION No. 17 19

2. that as regards communities dissolved in fact before the
entry into force of the Convention, the rules to be applied with
regard to the allocation of the proceeds of the liquidation of
their property are the same as those applicable to the
communities referred to in Article 7 of the Convention.

IT.

Before answering the questions put, the Court considers it
necessary to recall the general purpose which the Greco-Bul-
garian Convention of November 27th, 1919, respecting emi-
gration, was designed to fulfil, as also those of its provisions
which have to be applied and the scope of which should
therefore be clearly defined. |

The Greco-Bulgarian Convention concerning emigration con-
stitutes, according to its Preamble, the execution of Article 56,
paragraph 2, of the Peace Treaty concluded the same day
between the Allied and Associated Powers and Bulgaria. This
article forms part of the provisions relating to the protection
of minorities.

This shows the close relationship existing between the Con-
vention and the general body of the measures designed to
secure peace by means of the protection of minorities.

It was in this spirit, as stated in the Preamble, that the
Principal Allied and Associated Powers considered it opportune
that the reciprocal and voluntary emigration of minorities in
Greece and Bulgaria should be regulated by the Convention.
It follows that this Convention cannot apply to persons other“
than those who formed minorities-in either one country or the’
other.

The general purpose of the instrument is thus, by as wide a
measure of reciprocal emigration as possible, to eliminate or
reduce in the Balkans the centres of irredentist agitation which
were shown by the history of the preceding periods to have
been so often the cause of lamentable incidents or serious con-
flicts, and to render more effective than in the past the pro-
cess of pacification in the countries of Eastern Europe.

With these objects in view, the Convention not only lays
down that the departure of persons wishing to emigrate is
not to be hindered in any way, but also contains clauses

3
ADVISORY OPINION No. 17 20°

designed to prevent the material losses which their emigra- |
tion might entail upon them.

Furthermore, but always in the same spirit, the Conven-
tion seeks to stabilize emigrations which have taken place in
the past and, with this object, gives to these former emigrants
—mostly refugees who had fled in consequence of wars or
acts of violence—the possibility of recovering, if not the
actual property, at all events the value of the property
which they had been compelled to abandon on their departure.

In both cases it will readily be understood that, without
these clauses regarding property, there would have been hesi-
tation in the reciprocal emigration desired by the Powers, and
the permanent settlement of the former refugees would have
remained a matter of uncertainty for lack of encouragement.
The general purpose of the Convention would thus have been
compromised.

In these circumstances, the Convention makes provision
first and foremost (Articles 1, 2, 3, 4, 5, 6, 7) for emigration
subsequent to the Convention and carried out in accordance
with its terms, and, secondly and subsidiarily, in a special
clause deals with emigration previous to the entry into force
of the Convention. This clause constitutes Article 12. |

It should be observed that the Convention, by its provi-
sions, which lay down the conditions under which the right
of emigration is to be exercised by the respective nationals
of the two States, which remove any obstacles which might
interfere with their departure—save of course for a serious
conviction under the ordinary law—which fix conditions as
regards age, as also conditions respecting married women
and children and which, in the case of the former refugees,
stipulate that departure is to be followed by settlement,
has clearly indicated that it was individuals who were
entitled to take advantage of its terms.

Nevertheless, the material benefits which from time
immemorial in the East individuals of the same race, religion,
language and traditions, have derived from uniting into
communities, are well known.

Accordingly, the Convention does not confine itself to
protecting the separate property of individuals (Article 2,-
ADVISORY OPINION No. 17 ai

paragraph 2, Article 6, paragraph 1, and Article 7), but
also aims at securing for them, subject to certain condi-
tions and formalities, the possibility of taking away with
them the movable property and of receiving the value of
the immovable property of .the communities which are dis-
solved by reason of their emigration, collective property
thus being assimilated to individual property.

In the light of these preliminary observations, the
various questions put to the Court call for the following
remarks :

QUESTIONS DRAWN UP BY THE MIXED COMMISSION.

1° “What is the criterion to be applied to
determine what is a community within
the meaning of the Convention, inter
alia under Article 6, paragraph 2?”

By tradition, which plays so important a part in Eastern
countries, the “community” is a group of persons living in
a given country or locality, having a race, religion, language
and traditions of their own and united by this identity of
race, religion, language and traditions in a sentiment of
solidarity, with a view to preserving their traditions, main-
taining their form of worship, ensuring the instruction and
upbringing of their children in accordance with the spirit and
traditions of their race and rendering mutual assistance to
each other. .

Nowhere is evidence to be found that the Greco-Bulga-
rian Convention of November 27th, 1919, regarding emigra-
tion intended, by some special stipulation, to depart in any
of its provisions and particularly in Article 6, paragraph 2,
from this general traditional conception.

On the contrary, the aim and object of the Convention,
‘its connection with the measures relating to minorities, the
desire of the signatory Powers, to which the whole Conven-
tion bears witness, that the individuals forming the commu-
nities should respectively make their homes permanently
among their own race, the very mentality of the popula-
tion concerned—everything leads to the conclusion that the
Convention regards the conception of a “community” from
the point of view of this exclusively minority character
ADVISORY OPINION No. I7 22 .

which it has had for centuries past in the East, and in which
it played so important a part both under the Turkish Empire
and at the time of the recognition of the independence of
the States which emerged from the old Turkish provinces or
dependencies.

The question whether, in deciding on the application of
the Convention, a particular community does or does not
conform to the conception described above is a question
of fact which it rests with the Mixed Commission to con-
sider having regard to all the circumstances.

In order to fulfil the purpose for which they existed, and
in order to meet the common needs of their members, it
was necessary that the communities should have property at |
their disposal, that they should have a patrimony, no matter {
what legal form their possession of it might take, or what i
the local law might be as regards the granting or withholding
of juridical personality so as to enable them to be capable
‘in law of owning property.

The existence of communities is a question of fact; it
is not a question of law. In actual fact the communities
ordinarily possessed property. The Convention itself recog-
nizes this by referring expressly to the property, movable
or immovable, “‘belonging to communities’. It is this situa-
tion of fact which the Convention has in mind. =,

The question whether, according to local law, a community :
was or was not recognized as a juridical person, may be of
some importance from the point of view of the form which its
possession of property took. But the situation of fact is not
thereby altered and there is nothing in the provisions of the
Convention respecting the property “belonging to commu-
nities’ to indicate that only those communities which have
been accorded special legal recognition by the local legislation
are meant. If that had been its meaning, the Convention
would have been in conflict with the object which it was
designed to achieve, namely, to facilitate emigration as much,
as possible. |

Article 6, paragraph 2, when it mentions communities
of which emigrants may be members, adds the words “(includ-
ing churches, convents, schools, hospitals or foundations
of any kind whatever)”.
ADVISORY OPINION No. I7 23

In this connection, two hypotheses must bé considered
both of which are covered by the Convention.

A church, convent, school, hospital or any other foundation
may, indeed, constitute a more or less important part of the
property belonging to a community. If so, it is covered by
the terms of Article 6, paragraph 2, and Article 7 of the Con-
vention, which grant to emigrants the property or the value
of the property belonging to their communities.

But by these establishments may also be meant particular
institutions of which emigrants may be members or bene-
ficiaries, which have a separate existence and which in some
cases even have been accorded spécial recognition by the local
legislation. In such cases, the effect of Article 6, paragraph 2,
of the Convention is to assimilate such churches, convents,
schools, hospitals or foundations to communities, so as to
secure to emigrants, who are members or beneficiaries of these
institutions, the same rights in respect of the property. thereof
as in respect of property belonging to communities.

With regard to the first question drawn up by the Mixed
Commission, the conclusion is thus. reached that the conception
of a community within the meaning of the Greco-Bulgarian

Convention regarding emigration is the historical and tradi-
| tional conception,—that the question whether, according to
local law, a community was or was not recognized as a
distinct juridical person, need not be considered from the point
of view of the Convention,—that in point of fact the commu-
nities possessed property—and that churches, convents, schools,
hospitals or foundations having a separate existence are, when
persons who are members or beneficiaries thereof emigrate,
assimilated to communities.

2° “What conditions must be satisfied

in order to cause the Mixed Commis-
sion provided for in the Convention
to dissolve a community such as is
meant by the Convention ?”

The existence of a community being, as already stated,
a question of fact and not of law, the same must hold good
ADVISORY OPINION No. 17 24

as regards its dissolution, which is also a question of fact
and not of law.
The Convention contains no definition of dissolution; it con-

fines itself to providing for cases where dissolution may occur. .

The powers conferred by the Convention upon the Mixed
Commission relate to the measures to be taken after disso-
lution has taken place. But since dissolution is not the result
of legal proceedings, the Mixed Commission is not called upon
itself to dissolve a community, but simply to verify whether
dissolution has taken place, in order then to carry out the
measures prescribed in this event by the Convention.

On the other hand, in order that a community must be
regarded as dissolved from the point of view of the Conven-
tion, and in order that the Commission may thereupon take
the measures consequent on such dissolution, it follows from
Article 6, paragraph 2, that certain conditions must be ful-
filled. It rests with the Commission to satisfy itself that
they are fulfilled.

In the first place, the dissolution of the community must
be the consequence of the emigration of persons who were
members of it.

In the second place, it is essential that, as a result of this
emigration, of its extent and in general of the conditions
in which it has taken place, the community should be unable
to perform its task and fulfil its purpose.

These are questions of fact which the Commission must
decide, and it has all the powers necessary for this purpose
under Article 9 of the Convention.

Furthermore, if it happened that a community, in the

sense of the Convention, had received special legal recog- |
nition under the local law, some special local legal proceeding ;

might on that account be necessary in order that the commu-
nity should be dissolved in the eyes of the local law. That,
however, would be a proceeding outside the functions of the
Mixed Commission and extraneous to the dissolution of the
community as contemplated by the Convention.
ADVISORY OPINION No. I7 25

© 3° “What ts to be understood by such
dissolution ? What relations are to be
dissolved ? What is the period by
reference to which the existence of
such relations is to be established ?”’

Since, as has been seen, the existence of a community is,
within the meaning. of the Convention, only a question of
fact, and since the dissolution itself-is also a question of fact,
dissolution is the cessation of the existence of a community.
The community ceases to exist, and ceases to exist in all
respects. It would be useless to argue that a community
which has disappeared in fact continues to exist in law, and
that this continued legal existence necessitates a ‘dissolution
in law”. Such a situation could only arise if the communities
must, within the meaning of the Convention, be recognized
as juridical persons and, as has been seen, this is not the case.

As regards the “relations’’ destroyed by dissolution, the
very nature of a community shows that these relations are
bonds of solidarity uniting the individuals who are members of
the community and involving mutual rights and obligations
for these individuals.

If by “relations” are meant the various relations implied
by the existence of the community, it will be seen that the
dissolution of the community terminates not only the relations
of the individual members of the community one with another,
but also their relations with the community itself, as well as
the relations between the community. and third parties.

Lastly, as regards the moment of time by reference to
which the existence of such “relations” is to be established,
in principle this moment is clearly that immediately preceding
the dissolution of the community; on this dissolution the
application of the measures provided for by the Convention
is dependent.

If however the dissolution of a community only takes place
as the result of several consecutive emigrations, the last of
these involving dissolution, it is a question to be considered
in each particular case, and it will rest with the Commission
to ascertain whether, and if so to what extent, the earlier
ADVISORY OPINION No. I7 - 26

emigrations have contributed to the dissolution, and to decide
whether they should be taken into consideration for the pur-
poses of the distribution of the property of the community.

4° “What attitude is to be observed by the
Mixed Commission in cases where tt
does not succeed in discovering the
‘ayants droit’ (persons entitled) referred
to in Article 10, paragraph 2, of the
Convention ?”

If it is borne in mind’ that the object of the Greco-Bulgarian
Convention was to facilitate the emigration of individuals to
the country to which they are racially akin, that the Conven-
tion provides for the dissolution of communities precisely
because of this emigration and that, in order to encourage
individuals to emigrate, it affords them the possibility, condi-
tional upon their emigration, of benefiting individually from
the property of the community, it will be evident that this
dividing up of the property is a favour exclusively reserved to
persons entitled to avail themselves of the terms of the Con-
vention.

Since the measures provided for by the Convention are
designed to benefit emigrants, the Mixed Commission must only
intervene in order to satisfy itself that a community is dissolved
upon the application of individuals made personally, or on their
behalf, establishing their right to avail themselves of the Con-
vention and, thereby, their right to invoke its terms with a
view to claiming the allotment to them of movable property
or of a portion of the value of the immovable property belong-
ing to the dissolved community.

When the property of a dissolved community is liquidated,
no matter when this dissolution has taken place, the only
ayants droit (persons entitled) therefore are the emigrant mem-
bers of the community who establish their title and claim
liquidation on the ground of dissolution.

It is therefore difficult to see how, at any rate at that
moment, the ayants droit (persons entitled) would not be known.

Nevertheless, it may happen that among the ayants droit (per-
sons entitled) who were known at that time, there may be some
who subsequently cannot be traced in spite of the efforts of the
ADVISORY OPINION No. 17 27

Commission, In such a case, the Commission should inform the
governments, concerned of the fact and they will take the
necessary steps, in accordance with their respective laws, to
ensure that the value is duly paid to the persons entitled to
receive it under the terms of the Convention.

QUESTIONS DRAWN UP BY THE BULGARIAN GOVERNMENT.

1° “Seeing that the Convention deals with
voluntary emigration and that a com-
munity, being a legal fiction, only
exists in virtue of the law of the
country im question, whose frontiers
it cannot transcend, can it be admitted
‘that a community may emigrate in
virtue of the Convention, or does tt
not logically follow that, where the
Convention speaks of the property of
communities, this must be understood
to mean any private property rights
which emigrants may eventually pos-
sess in respect of such property ?”

The various statements upon which this question is based
cannot be regarded as either correct or relevant.

In the first place the Convention does not deal with volunt-
ary emigration only, since in Article 12 it also deals with
former refugees.

In the second place, as has already been seen in con-
nection with the first question of the Mixed Commission,
it is incorrect to regard the “‘community’ as a legal fiction
existing solely by the operation of the laws of the country. —

In the third place, the question whether a community,
within the meaning of the Convention, may or may not
emigrate is a question irrelevant to the application of the
Convention which, as has been seen, has for its object the
emigration of individuals. The individual members of the
community, and they alone, can under certain conditions
carry away the movable property of the community and
receive the value of its immovable property.

4
ADVISORY OPINION No. 17 28

As regards any private property rights which emigrants
may possess in respect of the property of the community,
these rights form part of the ‘pecuniary rights” of emi-
grants expressly mentioned and protected by Article 2, para-
graph 2, of the Convention. They should not be confused

with the movable and immovable property belonging to the

community, in regard to which Articles 6, paragraph 2, and 7
of the Convention provide for distribution in kind as regards
the former and liquidation followed by distribution of the
value as regards the latter. -

2° “The Mixed Commission being an
executive body entrusted with the duty
of facihtating emigration and liquidat-
ing existing rights of emigrants, and

» not with the creation of fresh rights, :

what body would be competent to order
the eventual dissolution of a commu-
mty, and what laws would such body
be required to observe in such a case ?’

The Convention does not confine itself to entrusting the
Commission with the liquidation of the immovable property
of emigrants; it also entrusts it (Article 6, paragraph 2),
where necessary, with the distribution to emigrants of the
movable property and of the proceeds of the liquidation of
the immovable property (Articles 7 and 10) belonging to
communities.

Moreover, since the community is not a creation of the

=

local law but has an existence in fact, its dissolution is also |

a question of fact; this dissolution has not to be pronounced
by any “‘competent body’, as might possibly be the case if
the community itself had been constituted and recognized

in accordance with some local law. The rights of members :

are not therefore created by a decision of the Commission
but arise out of the Convention itself.

For the same reasons the question of the applicability of
any particular legislation cannot arise.
ADVISORY OPINION No. I7 29

3° “Whichever views be adopted, 1.e. whether.
the case is considered to be one of
liquidation merely of emigrants’ prop-
erty rights over the property of the
communities or one of liquidation in
general of. the property of the com-
munities, must it not on either hypo-
thesis be recognized that the liquidation
must extend to the private property
of the moral person which is constituted
by a commune, a commune being the
typical example of a community ?”

The “commune” is a territorial district constituted by public
municipal law as an administrative and political unit, and
remaining the same no matter who its inhabitants may
be. The conception of a community, within the meaning of
the Convention, and its characteristic features are foreign
to this unit of the internal organization of a country.

In actual fact, it may happen that a community by itself
constitutes the entire population of a commune and that
consequently it is the community which exercises the rights
and fulfils the obligations of the inhabitants of a commune.
Should, however, this community disappear for any reason,
should the population change in this administrative district,
the commune continues to exist notwithstanding, for it owes
its existence not to the fact of the presence within its bound-
aries of inhabitants of some particular race, religion or
traditions, but to the sovereign law of the State.

Tf a community forming the whole population of a commune
possesses property therein, and if its members emigrate, it
is easy to see that this property will have to be liquidated ;
but it would be inconceivable if, by reason of this emigra-
tion, property belonging to the commune itself were to be
liquidated. It is evident that such property, since it does
not belong to the community, cannot be liquidated on the
ground of emigration.

Of course, if emigrants possessed individual rights in res-
pect of property jointly belonging to the inhabitants of a
commune, such rights must be respected and would be pro-
tected as provided by Article 2 of the Convention.
ADVISORY OPINION No. 17 30

QUESTIONS DRAWN UP BY THE GREEK GOVERNMENT.

1° “What is, in view of their origin and —
development, the nature of the com-
munities veferred to in Article 6,
paragraph 2, and Article 7 of the
Convention of Newlly? Do they
enjoy, in law or in fact, a personality
which confers upon them some of the
ativibutes of a moral person and in
particular the vight to possess a
patrimony separate from that of their
members ?” :

This question gives rise to the same observations as those
made in regard to the first question of the,Mixed Commission,
and there is no need to repeat them.

2° “Do the communities possess the char-
acteristic of being connected as min-
ovities and racial groups with the
country in which the majority of the
population is of the same race? What
ave eventually the consequences, as
regards the allocation of their property,
where their members, as contemplated
by Article 10 of the Convention, are
dispersed or absent (in the legal sense
of the term)?”

It follows from the observations already made with regard
to the Mixed Commission’s first question that communities
are of a character exclusively minority and racial.

On the other hand, whatever reasons may be advanced
_in support of the allocation to the State to which a commu-
nity is racially akin of the value of the property of such
community when dissolved, if the members thereof are dispersed
or absent, these reasons are foreign to the aim and object of
the Convention. The latter was in no way intended to
lighten by this means the burden which might devolve upon
this State as a result of an influx of population for the needs
of which it has to provide.
ADVISORY OPINION No. 17 31

As has been stated, the only persons entitled to benefit by
the Convention and able to invoke it in order, in certain cir-
cumstances, to have allotted to them the property or the value
of the property of a dissolved community, are the emigrant
members of such community. To them alone the allocation
of the property is reserved. The intention of the Convention
is by this means to facilitate or stabilize their emigration.

There is nothing in the Convention justifying the deduction
that the relations existing between communities and the
country to which they are racially akin give that country any
sort of claim in respect of the movable property or of the
proceeds of the liquidation of the immovable property of
dissolved communities; this holds-good even if all the former
members have established themselves in the territory of that
country.

3° “On what conditions should the disso-
lution of the communities be made to
depend ?”’

This question gives rise to the same observations as have
already been made with regard to the second question of
the Mixed Commission, and there is no need to repeat them.

4° “Does the Convention of Neuilly deal
with communities dissolved before its
entry into force? Should the same
vules be applied as regards the
dissolution of these commumties and
the allocation of the proceeds of the
liquidation of their property as apply
in the case of the communities referred
to in Article 7 of the Convention ?”

The Convention in its various clauses only. deals with com-
_ munities in so far as concerns their property which, following
upon their dissolution as a consequence of emigration, the
Convention devotes to the benefit of persons who were their
members. The provisions with reference to individuals cannot
be extended to communities.

Similarly, and from the point of view of the Convention, it
is, as has been stated, impossible to contemplate a survival
ADVISORY OPINION No. 17 32

in law of a community which has in fact ceased to exist and
is dissolved.

Entirely different is the question whether Article 12, securing
to persons who had emigrated before the coming into force
of the Convention the value of property left behind them in
the country which they have quitted, also gives them the
right to claim the vaiue of the property of communities of
which they were members and which have been dissolved as a
consequence of their emigration. |

In regard to this it should be observed that the object of
Article 12 is to allow certain persons to have the benefit of the
Convention to whom Articles x to 11 are not applicable. Though
it would be contrary to all sound rules of interpretation to change
the system of these articles by extending their application to
persons not contemplated by them, it seems on the. other
hand to be in harmony with the aim and spirit of this article to
give to persons who have already emigrated in respect of the
“property left by them’’ the same economic advantages as are
secured by the Convention to future emigrants. It follows
that just as persons emigrating subsequently to the Convention
participate in the property of the community the dissolution
of which is brought about by their emigration, so former
refugees ought to have the possibility of participating in the
proceeds of the liquidation of property belonging to a com-
munity of which they were members and the dissolution of
which resulted from their departure.

5° “If the application of the Convention
of Neuilly is at variance with a pro-
vision of internal law in force in the
territory of one of the two Signatory
Powers, which of the conflicting
provisions should be preferred—that of
the law or that of the Convention ?”

ae

In the first place, it is a generally accepted principle of
international law that in the relations between Powers
who are contracting Parties to a treaty, the provisions of
municipal law cannot prevail over those of the treaty.

In the second place, according to Article 2, paragraph 1,
and Article 15 of the Greco-Bulgarian Convention, the two
ADVISORY OPINION No. I7 33

Governments have undertaken not to place any restriction on
the right of emigration, notwithstanding any municipal laws
or regulations to the contrary, and to modify their legislation
in so far as may be necessary to secure the execution of the
Convention.

In these circumstances, if a proper application of the Con-
vention were in conflict with some local law, the latter would
not prevail over the Convention.

FOR THESE REASONS,
The Court

is unanimously of opinion that the answers to the questions
submitted to it are as follows :

I.— Answers to the questions drawn up by the Mixed Com-
mission :

1° The criterion to be applied to determine what is a
community within the meaning of the articles of the Conven-
tion, nier alia Article 6, paragraph 2, is the existence of a
group of persons living in a given country or locality, having
a race, religion, language and traditions of their own, and united
by the identity of such race, religion, language and tradi-
tions in a sentiment of solidarity, with a view to preserving
their traditions, maintaining their form of worship, securing
the instruction and upbringing of their children in accordance
with the spirit and traditions of their race and mutually
assisting one another.
~ From the point of view of the Convention, the question
whether, according to local law, a community is or is not
recognized as a juridical person need not be considered ;
communities can, in fact, possess property ; churches, convents,
schools, hospitals or foundations existing as distinct entities
are, when the persons who are members or beneficiaries
thereof emigrate, assimilated to communities.

2° The Mixed Commission, provided for by the Convention,
has not itself to dissolve communities. In the meaning of
the Convention, the dissolution of a community is a fact
ADVISORY OPINION No. 17 34

which must be verified by the Commission. It must result
from the exercise of the right of emigration by the members
of such community, and this emigration must involve the dis-
appearance of the community or render it impossible for it.
to carry out its mission or fulfil its object. |

3° By the dissolution of a community is to be understood
the breaking up of the community and the cessation of its
existence in all respects.

The “‘relations’’ dissolved are those which united the mem
bers of the community. Dissolution terminates the mutua
relations of individuals as members of the community as well
as their relations with the community itself and the relations
between the community and third Parties. The existence of
these relations should in principle be determined by reference
to the moment of time immediately preceding the dissolution
of the community.

4° The idea of the Convention is not to admit the dissol
lution of a community and the liquidation of its property in
the absence of individuals, members of such community,
who manifest their desire to profit by the terms of the Conven-
tion; it is therefore difficult to see how the ayants droit
(persons entitled) will not be known at the time of the liquid-'
ation.

Should there be some who subsequently, notwithstanding the
efforts of the Commission, cannot be traced, the Commission
must inform the governments concerned, with whom it will
rest, in accordance with their respective laws, to take the
necessary steps to ensure that the proceeds of liquidation are
duly paid to those entitled to them under the Convention.

IJ.—Answers to the questions drawn up by the Bulgarian
Government :

1° Private patrimonial rights which emigrants may have in
respect of the property of the community form part of the
“pecuniary rights” of emigrants, and these rights are expressly
mentioned and protected by Article 2, paragraph 2, of the
Convention ; they are not to be confused with the property
belonging to the community and dealt with in Article 6,
paragraph 2, and Article 7.
ADVISORY OPINION No. I7 35

2° The dissolution of a community being a fact, it has not
to be pronounced by any body and, so far as regards the
application of the Convention, there is no need to ascertain
what particular law is applicable.

3° The liquidation by the Mixed Commission of the property
of a community, within the meaning of Article 6, paragraph 2,
and of Article 7, does not apply to the private property of
the commune.

II].—Answers to the questions drawn up by the Greek
Government : |

1° The reply to this question has been given in paragraphs I
and 2 of the reply to the first question of the Mixed Com-
mission. ~

. 2° Communities, within the meaning of the Convention,
are of a character exclusively minority and racial. The State
to which they are racially akin does not from this circumstance
derive any right to the movable property or to the pro-
ceeds of the liquidation of the immovable property of a
dissolved community whose members are dispersed or absent.

3° The reply to this question has been given in connection
with the second question of the Mixed Commission.

4° The Convention is only applicable to communities dissolved
before its entry into force on the ground of emigration so far
as regards the application of the liquidation of their property.
A dissolved community cannot get the benefit of Article 12,
because it cannot comply with the conditions laid down in
that article. Former emigrants are given the possibility of
participating in the division of the proceeds of the liquidation
of the property of the community of which they were mem-
bers before its dissolution.

5° Should a proper application of the Convention be in :
conflict with some local law, the latter would not prevail as
against the Convention.
ADVISORY OPINION No. 17 36

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this thirty-first
day of July one thousand nine hundred and thirty, 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) D. ANZILOTTI, :
President.

(Signed) À. HAMMARSKJOLD,
Registrar.