INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA

(NICARAGUA v. UNITED STATES OF AMERICA)

ORDER OF 14 MAY 1984

1984

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ACTIVITES MILITAIRES
ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI

(NICARAGUA c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 14 MAI 1984
Official citation :

Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Order of 14 May 1984,
1 CJ. Reports 1984, p. 209.

Mode officiel de citation :

Activités militaires et paramilitaires au Nicaragua et contre celui-ci
(Nicaragua c. Etats-Unis d'Amérique), ordonnance du 14 mai 1984,
C.IJ. Recueil 1984, p. 209.

Sales number 500
Ne de vente :

209

COUR INTERNATIONALE DE JUSTICE

ANNEE 1984 1984
; 14 mai

Rôle général
14 mai 1984 n° 70

AFFAIRE DES ACTIVITÉS MILITAIRES
ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI

(NICARAGUA c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour,
Vu les articles 31 et 44 de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 9 avril 1984, par laquelle
la République du Nicaragua a introduit une instance contre les Etats-Unis
d'Amérique au sujet d’un différend relatif à la responsabilité encourue du
fait d’activités militaires et paramilitaires au Nicaragua et contre celui-
ci;

Vu l’ordonnance du 10 mai 1984 par laquelle la Cour a indiqué des
mesures conservatoires en attendant sa décision définitive en l’espèce et a
décidé que les pièces écrites porteraient d’abord sur la question de la
compétence de la Cour pour connaître du différend ét sur celle de la
recevabilité de la requête ;

Après s'être renseigné auprès des Parties,
Fixe comme suit la date d’expiration des délais pour le dépôt des pièces

de la procédure écrite relative à la question de la compétence et de la
recevabilité :

Pour le mémoire du Gouvernement de la République du Nicaragua, le
30 juin 1984 ;

Pour le contre-mémoire du Gouvernement des Etats-Unis d'Amérique,
le 17 août 1984 ;

Réserve la suite de la procédure.
ACTIVITÉS MILITAIRES ET PARAMILITAIRES (ORD. 14 V 84) 210

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le quatorze mai mil neuf cent quatre-vingt-quatre, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République du
Nicaragua et au Gouvernement des Etats-Unis d'Amérique.

Le Président,
(Signé) T. O. ELIAS.

Le Greffier,
(Signé) Santiago TORRES BERNARDEZ.


772

SEPARATE OPINION OF JUDGE HIGGINS

Removal from the List other than for reasons of discontinuance — Inherent
powers of the Court — Inherent powers not limited to two existing examples —
Reasons why this case should have been removed from the List — Inappropriate
for Judgment to have pronounced on Article 35, paragraph 2, of Statute.

1. The Court in its Judgment finds that the Observations of Serbia and
Montenegro have not had the legal effect of discontinuance of proceed-
ings under the Rules (para. 30). I agree. It is clear that the Applicant has
declined to “discontinue”, and that “discontinuance” as envisaged in the
Rules is dependent on the consent of the Parties.

2. The Court further observes that:

“Prior to the adoption of Article 38, paragraph 5, of the Rules of
Court, in a number of cases in which the application disclosed no
subsisting title of jurisdiction, but merely an invitation to the State
named as respondent to accept jurisdiction for the purposes of the
case, the Court removed the cases from the List by order. By Orders
of 2 June 1999, it removed from the List two cases brought by Serbia
and Montenegro concerning Legality of the Use of Force against
Spain and the United States of America, on the ground that the
Court ‘manifestly lack[ed] jurisdiction’ (Z C.J. Reports 1999, pp. 773
and 925).” (Judgment, para. 31.)

3. The Court then observes that “[t]he present case does not however
fall into either of these categories”. The Court thus appears to regard
these as a closed list of categories for the removal of cases from the List
(other than where discontinuance has occurred), and to suggest that no
removal from the List was open to the Court in the present case as the
facts do not fall within the existing two examples.

4. A case may be discontinued by the applicant alone and an order
issued to remove it from the List (Denunciation of the Treaty of 2 Novem-
ber 1865 between China and Belgium, Order of 25 May 1929, P.C.LJ.,
Series A, No. 18; Legal Status of the South-Eastern Territory of Green-
land, Order of 11 May 1933, P.C.I.J., Series AIB, No. 55, p. 157; Protec-
tion of French Nationals and Protected Persons in Egypt, Order of
29 March 1950, I. C.J. Reports 1950, p. 59; Electricité de Beyrouth Com-
pany, Order of 29 July 1954, I. C.J. Reports 1954, p. 107; Aerial Incident
of 27 July 1955 (United Kingdom v. Bulgaria), Order of 3 August 1959,

56
713 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

LC.J. Reports 1959, p. 264; Aerial Incident of 27 July 1955 (United
States of America v. Bulgaria), Order of 30 May 1960, I.C.J. Reports
1960, p. 146; Barcelona Traction, Light and Power Company, Limited,
Order of 10 April 1961, I.C.J. Reports 1961, p. 9; Trial of Pakistani Pris-
oners of War, Order of 15 December 1973, I.C.J. Reports 1973, p. 347;
Border and Transborder Armed Actions (Nicaragua v. Costa Rica),
Order of 19 August 1987, I.C.J. Reports 1987, p. 182; Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Order of 26 September 1991, I C.J. Reports 1991, p. 47;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order
of 27 May 1992, L. C.J. Reports 1992, p. 222; Passage through the Great
Belt (Finland v. Denmark), Order of 10 September 1992, I. C.J. Reports
1992, p. 348; Maritime Delimitation between Guinea-Bissau and Senegal,
Order of 8 November 1995, I.C.J. Reports 1995, p. 423; Vienna Conven-
tion on Consular Relations (Paraguay v. United States of America),
Order of 10 November 1998, I.C.J. Reports 1998, p. 426; Armed Activi-
ties on the Territory of the Congo (Democratic Republic of the Congo v.
Burundi), Order of 30 January 2001, I. C.J. Reports 2001, p. 3; Armed
Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda), Order of 30 January 2001, I.C.J. Reports 2001,
p. 6).

5. There is a comparable, and analogous, practice relating to discon-
tinuance upon the agreement of the parties, removal from the List being
effected by order. Among the many examples are Delimitation of the Ter-
ritorial Waters between the Island of Castellorizo and the Coasts of Ana-
tolia, Order of 26 January 1933, P.C.I.J., Series AIB, No. 51, p. 4;
Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société
Radio-Orient, Order of 31 August 1960, I.C.J. Reports 1960, p. 186; Cer-
tain Phosphate Lands in Nauru (Nauru v. Australia), Order of 13 Sep-
tember 1993, I.C.J. Reports 1993, p. 322; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Order of 10 September 2003, I.C.J. Reports 2003, p. 149; Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Order of 10 September 2003, I.C.J. Reports 2003,
p. 152.

6. The Court has also declined to proceed with cases in circumstances
other than discontinuance under the Rules. The Permanent Court termi-
nated interim measures proceedings in the Prince von Pless Administra-
tion case, on the grounds that the request made by Germany in its Appli-
cation had ceased to have any object (Order of 11 May 1933, P.C.LJ.,
Series AIB, No. 54, p. 150). And in the Northern Cameroons case, the
Court declined to proceed further with a case for what it saw as reasons
of judicial propriety (Preliminary Objections, Judgment, CJ.
Reports 1963, p. 29). In the Nuclear Tests cases, the Court did not
regard itself as constrained by the fact that Australia and New Zealand

57
774 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

had not, after the French announcement of the conclusion of its testing,
discontinued the proceedings under Article 74 of the 1972 Rules. The
Court stated that “this does not prevent the Court from making its own
independent finding” (Nuclear Tests (Australia v. France), Judgment,
ICI. Reports 1974, p. 270, para. 54; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p. 476, para. 57) and it deter-
mined that “the object of the claim has been achieved by other means”
— i.e., means other than litigation (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58).

7. In a pertinent dictum the Court stated that it saw:

“no reason to allow the continuance of proceedings which it knows
are bound to be fruitless. While judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none
the less true that the needless continuance of litigation is an obstacle
to such harmony.” (Nuclear Tests (Australia v. France), Judgment,
C.J. Reports 1974, p. 271, para. 58; Nuclear Tests (New Zea-
land v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 61.)

In both the Northern Cameroons and Nuclear Tests cases, the Court
decided not to adjudicate further and did not issue a formal order.

8. In its Orders of 2 June 1999 (Legality of Use of Force ( Yugosla-
via v. United States of America), Provisional Measures, Order of
2 June 1999, C.J. Reports 1999, p. 916; Legality of Use of Force
(Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
1 C.J. Reports 1999, p. 761) the Court had removed the cases from the
List after hearings on provisional measures, on the grounds that the
Court manifestly lacked jurisdiction. And, as was recognized in the Judg-
ment at paragraph 31, prior to the formulation of Article 38, para-
graph 5, of the Rules of Court, there were cases removed from the List
because the application was merely an invitation to the respondent.

9. These were actions by the Court in the exercise of its inherent
powers. The precedents on removal from the List cited by the Court
— where from the outset no subsisting title of jurisdiction has been
disclosed, or where the Court manifestly lacked jurisdiction — do not
constitute two exclusive categories within which the Court has to fall if it
wishes to exercise its inherent powers in the absence of discontinuance.
There is nothing in the case law that so suggests. Indeed, it is hard to
know what might be the legal source of a right to remove cases from the
List provided only that this would be limited to these two examples.

10. The Court’s inherent jurisdiction derives from its judicial character
and the need for powers to regulate matters connected with the adminis-

58
775 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

tration of justice, not every aspect of which may have been foreseen in
the Rules. It was on such a basis that the Permanent Court had admitted
the filing of preliminary objections to jurisdiction even before this possi-
bility was regulated by the Rules of Court. The Court stated that it was
“at liberty to adopt the principle which it considers best calculated to
ensure the administration of justice” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16). The power
of the Court to identify remedies for any breach of a treaty, in a case
where jurisdiction was based solely upon the treaty concerned, has been
regarded as within the Court’s inherent powers in the Corfu Channel case
(Assessment of Amount of Compensation, Judgment, I. C.J. Reports 1949,
p. 244) and in the LaGrand (Germany v. United States of America) case
(Memorial of the Federal Republic of Germany, Vol. I, 16 Septem-
ber 1999, para. 3.60).

11. The very occasional need to exercise inherent powers may arise as
a matter in limine litis, or as a decision by the Court not to exercise a
jurisdiction it has, or in connection with the conduct or the merits of a
case. The judges who jointly dissented in the Nuclear Tests cases did not
challenge the existence of such inherent powers. They asserted that their
use “must be considered as highly exceptional and a step to be taken only
when the most cogent considerations of judicial propriety so require”
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 322, para. 22, joint dissenting opinion). Understandably, these judges
were particularly concerned that the exercise of the power to decide pro-
prio motu should not be exercised without affording an applicant the
opportunity to submit counter arguments, as this was not consonant with
the due administration of justice. In the present instance, the issue of
whether the case should be removed from the List was fully canvassed
before the Court.

12. Thus the real question is not whether the Applicant has or has not
“discontinued” the case, nor whether the present circumstances are exactly
identical to the few examples where the Court itself has removed a case
from the List (examples which will, in their turn, have been “new” at the
relevant time and not falling into any previously established category).
The question is whether the circumstances are such that it is reasonable,
necessary and appropriate for the Court to strike the case off the List
as an exercise of inherent power to protect the integrity of the judicial
process.

I believe the answer is in the affirmative.

13. The starting point for discontinuance is Article 38, paragraph 2, of
the Rules of Court, whereby the applicant “shall specify as far as possible
the legal grounds upon which the jurisdiction of the Court is said to be
based”. The Court may, in certain circumstances, allow these grounds of
jurisdiction to be enlarged, and it may also occur that an applicant later
prefers to proceed on the basis of one specified ground rather than
another. Nonetheless, for all the flexibility built in to Article 38, para-

59
716 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

graph 2, of the Rules, the obligation contained in it is a continuing one.
An applicant which on Monday specifies two bases of jurisdiction for the
case it wishes the Court to decide, and on Thursday informs the Court
that these are not, after all, grounds on which it relies, cannot be said on
Saturday to be in conformity with Article 38, paragraph 2. It has put
itself out of conformity with Article 38, paragraph 2, and the fact that it
at the same time declines to “discontinue” the case under Article 88 or 89
of the Rules is irrelevant to that fact.

14. No more is the position of the Applicant who resiled from speci-
fied heads of jurisdiction without proffering others rendered in compli-
ance with the Rules by virtue of asking the Court “to decide on its
jurisdiction” in the light of these changes of position (Judgment, para. 27).
Such a request is totally outside of the contemplation of the Rules. Yet
this is what has occurred in this case. On 24 April 1999 the then Federal
Republic of Yugoslavia filed its Application instituting proceedings
against various States, invoking as the basis of the Court’s jurisdiction
Article 36, paragraph 2, of the Statute of the Court, as well as Article IX
of the Convention on the Prevention and Punishment of the Crime of
Genocide. On 20 December 2002, Serbia and Montenegro formally stipu-
lated that it was not a party to the Statute of the Court before 1 Novem-
ber 2000 — and that at the time of its initial Application, it was not
bound by the Genocide Convention.

15. Having thus put itself in a position incompatible with Article 38,
paragraph 2, of the Rules, Serbia and Montenegro did not inform the
Court it was discontinuing the case under Article 89 of the Rules, but
rather “asked the Court to decide on its jurisdiction”. It was in fact in no
position to make such a request of the Court, and these events alone are
sufficient, in my view, for the Court to have used its inherent powers to
ensure orderly conduct of its judicial function, and to have removed the
cases from the List.

16. In the event, the disorderly nature of the course now being fol-
lowed by Serbia and Montenegro was compounded. In response to its
initial claims on the merits against the various respondent States, in the
eight cases allowed to proceed by the Court beyond the initial hearings
on provisional measures, preliminary objections were lodged. For the
ensuing three years no response was made to these objections — and
indeed, when extremely brief Written Observations were eventually made,
they did not even attempt to counter or otherwise respond to the sub-
stantive arguments contained in the preliminary objections of the Respon-
dents. Instead, the Applicant resiled from its previously stated grounds of
jurisdiction and simply suggested that “the Court decide”. This incoher-
ent manner of proceeding is not, in my view, compatible with sound judi-
cial procedures, which are designed to be fair to all parties concerned,
and it provided further grounds for which the appropriate response of
the Court would have been to remove the cases from the List.

60
777 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

17. The regrettable history of events in this case falls within the
circumstances described by the Court in the Northern Cameroons
(Cameroon v. United Kingdom) case:

“There are inherent limitations on the exercise of the judicial func-
tion which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant,
or, indeed, of both parties to a case, on the one hand, and on the
other hand the duty of the Court to maintain its judicial character.
The Court itself, and not the parties, must be the guardian of the
Court’s judicial integrity.” (Preliminary Objections, Judgment, I. C.J.
Reports 1963, p. 29.)

x * +

18. In paragraph 38 of the Judgment, the Court states that it “cannot
decline to entertain a case simply because of a suggestion as to the
motives of one of the parties or because its judgment may have implica-
tions in another case”. Some observations in response to this statement
have been made in paragraph 12 of the joint declaration of seven judges.
In that context it is also necessary to make some observations on the
remarkable attention given by the Court to Article 35, paragraph 2, of
the Statute. This provision had, of course, never been invoked by the
Applicant during the period when it relied on its original grounds of
jurisdiction. The Applicant’s irregular request of 20 December 2002 to
the Court was “to decide on its jurisdiction considering the pleadings
formulated in these Written Observations”. These Written Observations
contained no invocation of Article 35, paragraph 2, as an alternative
ground of jurisdiction — yet, going beyond what the Applicant requested
in the present case, the Court has devoted some 23 paragraphs to laying
the grounds for a finding that Article 35, paragraph 2, of the Statute
could not have been an alternative basis for allowing access to the Court
in respect of the Genocide Convention so far as Serbia and Montenegro
is concerned. This exercise was clearly unnecessary for the present case.
Its relevance can lie, and only lie, in another pending case. I believe the
Court should not have entered at all upon this ground in the present case.

x * +

19. Because I am of the firm view that grounds ratione personae
should not have been chosen for the disposition of this case (for reasons
elaborated in the joint declaration of seven judges), it is not my intention
here to offer my own views as to the arguments that the Court advances
to support its findings on this ground. It suffices to say that, while
General Assembly resolution 55/12 of 1 November 2000, admitting the

61
778 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Federal Republic of Yugoslavia as a new State, necessarily clarifies the
legal situation fhereafter, it remains debatable whether “from the van-
tage point from which the Court now looks at the legal situation”, the
“new development in 2000 . . . has clarified the thus far amorphous legal
situation concerning the status of the Federal Republic of Yugoslavia
vis-a-vis the United Nations” at the relevant time (Judgment, para. 77).

20. It was said by Judge Lachs in 1992 that, while the various major
organs of the United Nations do each have their various roles to play in
a situation or dispute, they should act

“in harmony — though not, of course, in concert — and that each
should perform its functions with respect to a situation or dispute,
different aspects of which appear on the agenda of each, without
prejudicing the exercise of the other’s powers” (Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of 14 April 1992,
LC.J. Reports 1992, p. 27, separate opinion of Judge Lachs).

The Court, in purporting to find an ex post facto clarification of the
situation as it was in 1992-2000, notwithstanding that the General Assem-
bly and Security Council had in all deliberation felt the objectives of the
United Nations were best met by legal ambiguity, seems to have ignored
that wise dictum.

(Signed) Rosalyn HIGGINS.

62


27 . AVIS CONSULTATIF N° 16

ANNEXE

Ce dossier a été iransmis au Secrétaire général de la Société des Nations
sous le couvert d'une lettre en date du 6 décembre 1924, du président de la
Commission mixte. Il se compose des pièces énumérées ci-après :

4. — Lettre du président de la Commission mixte au Secrétaire général de
la Société des Nations en date du 6 décembre 1924, transmettant le
dossier relatif à cette question.

2. — Procès-verbal de la 67me séance plénière de la Commission mixte pour
l’Échange des Populations grecques et turques, tenue à Constantinople
le 4 septembre 1924. (Avec trois annexes.)

Sous-annexe 1: Mémoire grec.

Sous-annexe 2: Aide-Mémoire turc.

Sous-annexe 3: Opinions des membres neutres de la Commission
mixte sur le sens de l’article 2 de la Convention concernant l'Échange
des Populations grecques et turques, signée à Lausanne le 80 janvier

1923.

3. — Procès-verbal de la 69me séance plénière de la Commission mixte,
tenue à Constantinople le 8 septembre 1924.

4, — Idem, 70me séance, 15 septembre 1924.

5. — Idem, Time séance, 15 novembre 1924.

6. — Aide-Mémoire grec relatif à la question des «établis ».

Sous-annere 1: Rapport de M. Montagna, président de la Sous-
Commission pour l'Échange des Populations grecques et turques
{extrait}, annexé au procès-verbal de la séance du 10 janvier 1923
(Conférence de Lausanne).

Sous-annexe 2: Extraits des Actes de la Conférence de Lausanne,
première Série, tome IT, 157 (Troisième Sous-Commission).

Sous-annexe 3: Notice sur la loi turque du recensement.

Sous-anneze 4: Communication de Ia Sous-Commission pour
l'’Échange des Populations grecques et turques (Stamboul, 10 octobre
1924).

Sous-annere 5: Lettre de la sixième Sous-Commission au prési-
dent de la Commission mixte (Stamboul, 30 octobre 1924).

Sous-anneze 6: Lettre de la délégation hellénique au président
de la Commission mixte (Constantinople, 6 octobre 1924).

Sous-anneze 7: Idem, 18 octobre 1924.

6bis. — Mémoire de la délégation turque, présenté à la Cour permanente
de Justice internationale (7 décembre 1924).
Sous-annexe 1: Décision n° XVII de la Commission mixte
(4 avril 1924). . ‘
Sous-annexe 2: Loi turque du 14 août 1914 sur l'état civil

(traduction).
Sous-annere 3: Loi turque du 14 août 1914 sur le recensement
(traduction).
Sous-annexe 4: Aide-Mémoire turc.
7. — 1. Procès-verbal de la séance du 16 septembre 1924 de la Section

juridique de la Commission mixte.
II. Idem, 17 septembre 1924.
9 5 .

If]. » , 22 » »
IV. » , 23 » »
V. » , 25 » »
VI. » , 27 » »
VII. » , 29 » »
VIET. » , ter octobre » (matin).

TX. » , » » » (aprés-midi).
28 AVIS CONSULTATIF N° IO

X. Rapport du président de la Section juridique à la Commission mixte
(der octobre 1924). °
XI. Procès-verbal de la séance du 5 octobre 1924 de la Section juridique
de la Commission mixte.

8. — Procès-verbal de la trente-et-uniéme ‘Session (extraordinaire) du Conseil
de la Société des Nations. — Quatrième séance publique, 31 octobre
1924 (avec trois annexes).

Annexe 693: Lettre de S.Exc. M. Politis au Secrétaire général
de la Société des Nations (29 octobre 1924).
Appendice 1 à l'annexe 693: Opinion des membres neutres
de la Commission mixte.
Appendice 2 à l'annexe 693: Rapport du président de la
Section juridique à la Commission mixte, 1er octobre 1924.
Annexe 693a: Requête du Gouvernement hellénique, soumise au
Conseil de la Société des Nations le 31 octobre 1924.
Annexe 693b : Télégramme de S. Exc. Ismet Pacha au Secrétaire
général de la Société des Nations (28 octobre 1924).

9. — Rapport du vicomte Ishii, adopté par le Conseil de la Société des
Nations le 13 décembre 1924.

10. — Procès-verbal de la onzième séance de la trente-deuxième Session du
Conseil de la Société des Nations, tenue à Rome le 13 décembre 1924
(extrait).

44. — Convention concernant l’Echange des Populations grecques et turques,

signée à Lausanne le 30 janvier 1923.


AFFAIRE RELATIVE A

CERTAINS INTERETS ALLEMANDS
EN HAUTE-SILESIE POLONAISE

. PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES A — No. 6
August 25th, 1925

COLLECTION OF JUDGMENTS

CASE CONCERNING

CERTAIN GERMAN INTERESTS |
IN POLISH UPPER SILESIA |

LEYDEN
A.W, SIJTHOFF’S
PUBLISHING COMPANY
1925

LEYDE
SOCIETE D’EDITIONS
A.W. SIJTHOFF
1925

PERMANENT COURT OF INTERNATIONAL JUSTICE.

EIGHTH (ORDINARY) SESSION.
August st
Present : File E, c. V

: Docket VIII.

MM. Huser, President,

LODER, Former President,

Weiss, Vice-President,
Lord FInray,
MM. Nvxotm,

DE BUSTAMANTE,

ALTAMIRA, Judges.

Opa,

ANZILOTTI,

PESSÔA,

WANG. | Deputy- Judge.

Count RosTworowskI,
M. Razer, National Judges

i
i

JUDGMENT No. 6.

CASE CONCERNING
CERTAIN GERMAN INTERESTS
IN POLISH UPPER SILESIA.

The Government of Germany, represented by Dr. Erich

Kaufmann, Professor at Bonn,

Applicant,
versus
The Government of the Polish Republic, represented by
M. Mrozowski, President of the Supreme Council of. Warsaw,
M. Limburg, Leader of the Bar at The Hague, and M. Sobolewski,

Assistant Delegate to the Reparations Commission,

Respondent.
JUDGMENT No. 6. — POLISH UPPER SILESIA 5

PRELIMINARY OBJECTIONS TAKEN BY THE GOVERNMENT
OF THE POLISH REPUBLIC.

THE COURT,

composed as above,
having heard the observations and conclusions of the Parties,

‘delivers the following judgment :

*
* *

The Government of the German Reich, by an Application institut-
ing proceedings filed with the Registry of the Court on May 15th,
1925, in conformity with Article 40 of the Statute and Article 35
of the Rules of Court, has submitted to the Permanent Court of
International Justice a suit concerning certain German interests
in Polish Upper Silesia. These interests concerned in the first
place the taking over by a delegate of the Polish Government of
control of the working of the nitrate factory at Chorzow, the taking
possession by him of the movable property and patents, licences,
etc., of the company which had previously worked the factory, and
the removal from the land registers of the name of this company
as owner of certain landed property at Chorzow and the entry
of the Polish Treasury in its place. In the second place, these
interests concerned the notice given by the Government of
the Polish Republic to the owners of certain large agricultural
estates of its intention to expropriate these properties.

It is submitted in the Application :

1. (a) that Article 2 of the Polish Law of July 14th, 1920, consti-
tutes a measure of liquidation as concerns property, rights
and interests acquired after November rth, 1918, and that
Article 5 of the same law constitutes a liquidation of the
contractual rights of the persons concerned ;

(b) that, should the decision in regard to point (a) be in the
affirmative, the Polish Government in carrying out these
liquidations has not acted in conformity with the provi-
sions of Articles 92 and 297 of the Treaty of Versailles ;

2. (a) that the attitude of the Polish Government in regard to the
Oberschlesische Stickstoffwerke and Bayrische Stickstoffwerke
JUDGMENT No. 6. — POLISH UPPER SILESIA 6

Companies was not in conformity with Article 6 and the
following articles of the Geneva Convention ;

(0) should the decision in regard to point (a) be in the
affirmative, the Court is requested to state what atti-
tude should have been adopted by the Polish Govern-
ment in regard to the Companies in question in order to
conform with the above-mentioned provisions ;

3. that the liquidation of the rural estates belonging to Count
Nikolaus Ballestrem ; to the Georg Giesches Erben Company ;
to Christian Kraft, First zu Hohenlohe-Oehringen ; to
the Vereinigte Kénigs- und Laurahütte Company ; to the
Baroness Maria Anna von Goldschmidt-Rothschild (née
von Friedlander-Fuld) ; to Karl Maximilian, First von Lich-
nowsky ; to the City of Ratibor ; to Frau Gabriele von Ruffer
(née Gräfin Henckel von Donnersmarck) ; to the Godulla
Company and to Frau Hedwig Voigt, would not be in
conformity with the provisions of Article 6 and the
following articles of the Geneva Convention.

In the course of the oral proceedings in Court, the German repre-
sentative stated that he withdrew submission No. 3, in so far asit
concerned the agricultural estate belonging to Madame Hedwig
Voigt ; this statement was duly recorded. |

The Application instituting proceedings was, in accordance with
Article 40 of the Statute, communicated to the Government of the
Polish Government on May 16th, 1925. That Government informed
the Court on June r2th and 18th that it felt obliged in this suit to
make ‘certain preliminary objections of procedure, and, in partic-
ular, an objection to the Court’s jurisdiction to entertain the suit’’ ;
these objections it intended to set out in a Case which would be
filed before the end of the month of June, that is to say in sufficient
time “‘to enable the Court to commence the oral proceedings in
regard to these objections of procedure on July 15th”.

The representative of the German Government, on being
informed of the Polish Government’s communication, also made
a statement to the effect that the German Reply to the Polish
Case on the question of jurisdiction would be filed in sufficient time,
whereupon July roth was fixed as the date for the filing of the
German Counter-Case in reply to the Polish Government’s Case
JUDGMENT No. 6, — POLISH UPPER SILESIA 7

setting out the preliminary objections which that Government
intended to make.

The Polish Case, which was headed “Réponse exceptionnelle
to the Application of the German Government dated May 15th,
1925’, was filed with the Registry and communicated to the
representative of the German Government on June 26th. It
was submitted in this document that:

(a) in regard to suit No. I (the factory at Chorzow), the Court
should declare that it had no jurisdiction or, in the alternative,
that the application could not be entertained until the German-
Polish Mixed Arbitral Tribunal had given judgment ;

(0) in regard to the suits grouped under No. IT (the large
agricultural properties), the Court should declare that it had
no jurisdiction, or, in the alternative, that the application
could not be entertained.

The German Counter-Case, which is headed ‘‘Observations of the
German Government concerning the objections taken in the reply
of the Polish Government to the Application of the German Govern-
ment concerning certain German interests in Polish Upper Silesia”,
was filed with the Registry and communicated to the Polish repre-
sentative on the day fixed. The German Counter-Case, whilst
abstaining from making any definite submissions, endeavours to
refute the submissions made in the Polish Case.

In support of their submissions or arguments, the Parties have
placed a number of documents before the Court, as annexes to their
“Reply” and ‘‘Observations”. The German Government has also
filed a collection of ““Documents concerning the question of the
Nitrate Factory at Chorzow’’.

Furthermore, the Court has heard, in the course of public sittings
held on July 16th, 18th and 2oth, the statements of MM. Mrozowski
and Limburg, agents for the Polish Government, and of Professor
Kaufmann, agent for the German Government.

+
* *

THE FACTS.

Before commencing the legal examination of the preliminary
objections raised by the Polish Government, it is necessary briefly
JUDGMENT No. 6. — POLISH UPPER SILESIA 8

to state the facts which have led up to the institution of proceedings
by the German Government. A distinction must be made between
the facts relating respectively to each of the two groups of interests
referred to in the German Application, namely, those connected with .
the factory at Chorzow and those connected with the notice of an
intention to proceed to expropriation given to certain owners of
large agricultural estates. |

À. — The Factory at Chorzow.

On March 5th, 1915, a contract was concluded between the Chan-
cellor of the German Empire, on behalf of the Reich, and the Bayri-
sche Stickstoffwerke A.-G. of Trostberg, Upper Bavaria, by which
contract this Company undertook “to establish for the Reich and
to begin forthwith the construction of”, amongst other things, a
nitrate factory at Chorzow in Upper Silesia. The necessary
lands were to be acquired on behalf of the Reich and entered
in its name in the land register. The machinery and equipment
were to be in accordance with the patents and licences of the
Company and the experience gained by it, and the Company
undertook to manage the factory until March 31st, 1941, making
use of all patents, licences, experience gained, innovations and
improvements, as also of all supply and delivery contracts of
which it had the benefit. For this purpose a special section
of the Company was to be formed, which was, to a certain
extent, to be subject to the supervision of the Reich which had the
right to a share of the surplus resulting from the working of the
factory during each financial year. The Reich had the right,
commencing on March 31st, 1926, to terminate the contract for the
management of the factory by the Company on March 31st of any
year upon giving fifteen months’ notice. The contract could be
terminated as early as March 31st, rg21, always on condition of
fifteen months’ notice being given, if the Reich’s share of the
surplus did not reach a fixed level.

On December 24th, 1919, a series of legal instruments were
signed and legalized at Berlin with a view to the formation of a new
Company, the Oberschlesische Stickstoffwerke A.-G., and the sale
by the Reich to that Company of the factory at Chorzow, that is
to say, the whole of the land, buildings and installations belonging
thereto, with all accessories, reserves, raw material, equipment and
JUDGMENT No. 6. — POLISH UPPER SILESIA 9

stocks. The management and working were to remain in the
hands of the Bayrische Stickstoffwerke Company, which, for this
purpose, was to utilize its patents, licences, experience gained and
contracts. These relations between the two Companies were
confirmed by means of letters, dated December 24th and 28th, 1919,
exchanged between them. The Oberschlesische Stickstoffwerke
Company was duly entered on January 29th, 1920, at the Amts-
gericht of Kôünigshütte, in the Chorzow land register, as owner of the
landed property constituting the nitrate factory of Chorzow.

On July 1st, 1922, this Court, which had become Polish, gave a
decision to the effect that the registration in question was null
and void and was to be cancelled, the pre-existing position being
restored, and that the property rights of the lands in question were
to be registered in the name of the Polish Treasury. This decision,
which cited Article 256 of the Treaty of Versailles and the Polish
law and decree of July r4th, 1920, and June 16th, 1922, was
put into effect the same day.

On July 3rd, 1922, M. Ignatz Moscicki, who was delegated with
full powers to take charge of the factory at Chorzow by a Polish
ministerial decree of June 24th, 1922, took possession of the factory
and took over the management in accordance with the terms of the
decree. The German Government contends and the Polish Govern-
ment admits that the said delegate, in undertaking the control of
the working of the factory, at the same time took possession of the
movable property, patents, licences, etc.

On November 1oth, 1922, the Oberschlesische Stickstoffwerke
Company brought an action before the Germano-Polish Mixed
Arbitral Tribunal at Paris. It called upon that Court

“to. allow the claim submitted by the Oberschlesische Stickstof{-
werke Aktrengesellschaft, and to order the Polish Government, the
respondent in the suit, to restore the factory, to make any other
reparation which the Court may see fit to fix and to pay the costs
of the action.”

In its reply to this application, the Polish Government asked
the Court to declare that it had no jurisdiction (in the alternative,
to non-suit the applicant).

The suit was admitted to be ready for hearing on October 15th,
1923. It is, however, still pending. ©
JUDGMENT No. 6. — POLISH UPPER SILESIA Io

Furthermore, the Oberschlesische Stickstoffwerke Company brought
an action before the Civil Court of Kattowitz. It asked that Court

“to order the respondent to inform the applicant as to the
movable property found at the Chorzow nitrate factories at rT a.m.
on the morning of July 3rd, 1922, when the working of those
factories was resumed by the respondent ; to state what debts
it had collected; to restore to the applicant or to the Bayrische
Stickstoffwerke Company such movable property, or, should this be
impossible, the equivalent value, and also to repay to the applicant
or to the Bayrische Stickstoffwerke Company the amount of the
debts collected.”

This action is still before that Court, which, however, decided
on December 7th, 1923, that there was no pendency, as notice
of the action had not yet been served on the Procurature
générale at Warsaw, ‘

B. — The large agricultural Estates.

The Monitor Polski of December 30th, 1924, contains notice
of the Polish Government’s intention to expropriate certain large
estates situated in Polish Upper Silesia and belonging to twelve
proprietors, amongst whom were

Count Nikolaus Ballestrem,

The Georg Giesches Erben Company,

Christian Kraft, Fiirst zu Hohenlohe-Oehringen,

The Vereinigte Kôünigs- und Laurahütte Company,

Baroness Maria Anna von Goldschmidt-Rothschild, née von
Friedländer-Fuld, |

Karl Maximilian, Fürst von Lichnowsky,

The City of Ratibor,

Frau Gabriele von Ruffer, née Grafin Henckel von Donners-
marck,

The Godulla Company,

Frau Hedwig Voigt.

As stated at the hearing by the representative of the Polish
Government, and as already mentioned, notice was subsequently
JUDGMENT No. 6. — POLISH UPPER SILESIA II

withdrawn in the case of Frau Hedwig Voigt, the competent
Polish authorities having recognized that this lady was entitled
to retain her domicile in Polish Upper Silesia.

These notifications were issued on the basis of the provisions of
Article 15 of the Germano-Polish Convention concerning Upper
Silesia, concluded at Geneva on May 15th, 1922. They contained
an invitation to those concerned to submit any objections or observ-
ations within a fixed time.

It is not alleged that in any case such notice has been followed by
actual expropriation.

Six’ of the proprietors mentioned above have brought actions
before the Germano-Polish Mixed Arbitral Tribunal, in accordance
with Article 19 of the Convention concerning Upper Silesia; the
object of these actions is to obtain an order suspending expropri-
ation proceedings and a declaration that such proceedings are illegal.
Two of these actions are pending, but in the other four notice of
proceedings has not yet been served on the defendant. As regards
at least one of the actions pending, the Polish Government has dis-
puted the jurisdiction of the Mixed Arbitral Tribunal.

%
+ *

THE Law.

Before considering the preliminary objections made by Poland,
it should be observed that the two Parties agree in recognizing that
Article 23 of the Geneva Convention falls within the category of
“matters specially provided for in treaties and conventions in force”,
mentioned in Article 36 of the Court’s Statute, and the Polish
Government does not dispute the fact that the suit has been duly
submitted to the Court in accordance with Articles 35 and 40 of
the Statute. But Poland raises an objection and submits that the
Court should give judgment to the effect that the German Applica-
tion refers to a difference which is not covered by Article 23 of
the Convention of Geneva and, should this submission be rejected,
that, even if the Court had jurisdiction, the Application could not
be entertained.

The Court finds as follows: The Application states in two Chapters,
Nos, I and II, the facts and allegations on which its submissions

2
JUDGMENT No. 6. — POLISH UPPER SILESIA IZ

are based. Chapter I relates to the taking possession by the
Polish Authorities of the factory at Chorzow and of the movable
property connected with it; it also states the German Govern-
ment’s opinion concerning the scope of certain clauses of the
Polish Law of July r4th, 1920, and of the Treaty of Versailles.
Chapter II, on the other hand, deals with the notice of intention to
expropriate certain large agricultural estates.

Submissions Nos. I and 2 of the German Application evidently
relate to Chapter I of the statement, whilst submission No. 3 relates
to Chapter IT.

The Polish Objection, in its submissions, follows the division into
two chapters of the German Application, the first submission refer-
ring, according to the actual terms of the Polish Case, to Chapter I,
whilst the second relates to Chapter IT.

It follows that the first Polish submission which refersto l’affairel,
the so-called ‘Case of the Factory at Chorzow’’, of the German
Application, questions the Court’s jurisdiction to deal with either
Submission No. 1 or Submission No. 2 of the German Application.

In the form in which it is drafted, Submission No. x of the Ger-
man Application seems to deal exclusively with the Polish Law of
July r4th, 1920, and therelation between this law and Articles 92
and 297 of the Treaty of Versailles. It cannot be regarded as
in terms relating to a difference of opinion respecting the construc-
tion and application of Articles 6 to 22 of the Geneva Convention.
But in the light, more particularly, of the statement contained in
Chapter I of the German Application, it is clear that Submission
No. 1 may contemplate questions relating to the case of the factory
at Chorzow and may have been made in regard to such questions.

Having regard to this uncertainty as to the exact bearing of
Submission No. r of the German Application, a declaration by the
Court that it has jurisdiction to deal with affaire I mentioned
in the first submission of the Polish Objection, must in no way
prejudice the question of the extent to which the Court may see
fit to deal with the questions contemplated by Submission No. x
of the German Application, in the proceedings on the merits.

For these reasons, the Court will consider separately the Polish
submissions regarding l'affaire I, relating to the factory at
Chorzow, and those relating to the large agricultural estates.
JUDGMENT No. 6, — POLISH UPPER SILESIA 13

A. — The Factory at Chorzow.
I.
The Plea to the Jurisdiction.

Poland’s first and principal.objection, in the case of the factory
at Chorzow, is an objection to the Court’s jurisdiction. It will be
well at this point to recall the terms of Article 23 of the Convention
of Geneva on which the Court’s jurisdiction—-if it has jurisdiction—
to try the suit on its merits must be based. This article runs as
follows :
| Translation.

1. — Should differences of opinion respecting the construc-
tion and application of Articles 6 to 22 arise between the Ger-
man and Polish Governments, they shall be submitted to the
Permanent Court of International Justice. .

“‘2, — The jurisdiction of the Germano-Polish Mixed Arbitral
Tribunal derived from the stipulations of the Treaty of Peace
of Versailles shall not thereby be prejudiced.”

Poland bases her objection on three different arguments; she con-
tends : (a) that the Court has no jurisdiction because the existence
of a difference of opinion in regard to the construction and applica-
tion of the Geneva Convention had not been established before the
filing of the Application ; (6) that the Court has no jurisdiction be-
cause the dispute is not one of those contemplated under Article 23 ;
and (c) that the Court has no jurisdiction because submission 2
(6) of the Application is equivalent to a, request for an advisory :
opinion, which cannot be made by an individual State, but only
by the Council or Assembly of the League of Nations. As regards
the last point, the Court considers that it rather affects the ques-
tion whether the suit can be entertained, and will therefore take
it together with Poland’s subsidiary submission.

*
% *

1, — As regards the first argument advanced by Poland in support
of her contention that the Court has no jurisdiction to deal with
submissions 1 and 2 of the German Application, the following
JUDGMENT No. 6. — POLISH UPPER SILESIA 14

facts should be noted: Article 23, differing in this respect from
many compromissory clauses, but resembling certain other provi-
sions of the Geneva Convention giving jurisdiction to the Mixed
Commission or to the Arbitral Tribunal set up by it, does not stipul-
ate that diplomatic negotiations must first of all be tried ; nor does
it lay down that a special procedure of the kind provided: for in
Article 2, No. 1, must precede reference to the Court. A
comparison, therefore, between the various clauses of the Geneva
Convention dealing with the settlement of disputes shows that
under Article 23 recourse may be had to the Court as soon as one of
the Parties considers that a difference of opinion arising out of the
construction and application of Articles 6 to 22 exists.

Now a difference of opinion does exist as soon as one of the
Governments concerned points out that the attitude adopted by
the other conflicts with its own views. Even if, under Article 23,
the existence of a definite dispute were necessary, this condition
could at any time be fulfilled by means of unilateral action on the
part of the applicant Party. And the Court cannot allow itself
to be hampered by a mere defect of form, the removal of which
depends solely on the Party concerned.

Lastly, it has been contended that according to Article 23 there
must be “a difference of opinion respecting the construction and
(et) application of” the articles in question, the.conjunction é
being regarded as having a cumulative meaning. The Court
cannot attribute this scope to the word ef which, in both ordinary
and legal language, may, according to circumstances, equally have
an alternative or a cumulative meaning. This point, however, is
without practical importance, as the present case concerns both
construction and application. As will be demonstrated later, the’
discussion of the case of the factory at Chorzow relates to a concrete
instance of the application of treaty stipulations differently inter-
preted by the Parties.

2. — The argument on which Poland seems principally to base her
objection, and on which the Cases and statements by Counsel
chiefly bear, is the alleged non-existence of a difference of opinion
respecting the construction and application of Articles 6 to 22 of the
Geneva Convention. The Polish Government contends that the
difference of opinion between the Parties does not relate to Articles
JUDGMENT No. 6. — POLISH UPPER SILESIA 15

6 to 22 of the Geneva Convention, but solely to the interpretation
of thelawofr920. According to the Application, this law is a meas-
ure of liquidation ; in Poland’s contention, its effect is simply to
annul acts alleged to be contrary to the obligations arising out of
Article 256 of the Treaty of Versailles and the Protocol of Spa.
And, in the view of the Polish Government, differences of opinion
regarding the interpretation of the law of 10920 do not fall within
the scope of Article 23 of the Geneva Convention which governs
the Court’s jurisdiction.

It is clear that the Court’s jurisdiction cannot depend solely on
the wording of the Application ; on the other hand, it cannot be
ousted merely because the respondent Party maintains that the
rules of law applicable in the case are not amongst those in regard
to which the Court’s jurisdiction is recognized. The Court must,
in the first place, consider whether it derives from Article 23 of the
Geneva Convention jurisdiction to deal with the suit before it and,
in particular, whether the clauses upon which the decision on the
Application must be based, are amongst those in regard to which
the Court’s jurisdiction is established.

In this connection, the Court observes in the first place that the
objection to the jurisdiction filed by the Polish Government was
submitted at a time when no document of procedure upon the
. merits had been filed and that, in consequence of the objection, the
proceedings on the merits of the suit were suspended. In these
circumstances, and although Poland herself has not refrained from
taking some of the arguments advanced by her in support of her
objection from the merits of the case, the Court cannot in its deci-
sion on this objection in any way prejudge its future decision on
the merits. On the other hand, however, the Court cannot on
this ground alone declare itself incompetent ; for, were it to do so,
it would become possible for a Party to make an objection to the
jurisdiction—which could not be dealt with without recourse to
arguments taken from the merits—have the effect of precluding
further proceedings simply by raising it in limine litis ; this would
be quite inadmissible.

The Court, therefore, for the purposes of the decision for which
it is now asked, considers that it must proceed to the enquiry
above referred to, even if this enquiry involves touching upon
subjects belonging to the merits of the case ; it is, however, to be
JUDGMENT No. 6. — POLISH UPPER SILESIA 16

clearly understood that nothing which the Court says in the present
judgment can be regarded as restricting its entire freedom to
estimate the value of any arguments advanced by either side on
the same subjects during the proceedings on the merits.

%
* *

The preceding statement of the points in regard to which the
Parties disagree shows that the difference of opinion between them
relates to the question whether, in the case of dispossession under
consideration, Articles 6 to 22 of the Geneva Convention are or are
not applicable, that is to say to the extent of the sphere of applica-
tion of those articles.

Article 6 of the Convention is as follows :

[ Translation.]

“Poland may expropriate in Polish Upper Silesia in con-
formity with the provisions of Articles 7 to 23 undertakings
belonging to the category of major industries including mineral
deposits andruralestates. Except as provided in these clauses,
the property, rights and interests of German nationals or
of companies controlled by German nationals may not be
liquidated in Polish Upper Silesia.”’

Thus Article 6 on the one hand recognizes Poland’s right to
expropriate, in conformity with the provisions of Articles 7 to 23,
certain industrial undertakings and agricultural estates and, on the
other hand, stipulates that except as provided in these clauses, the
property, rights and interests of German nationals or of companies
controlled by German nationals may not be liquidated in Polish
Upper Silesia.

So that, whatever may be the relation between the two sentences
of the article, and whatever may be the scope, in this article, of the
conceptions of «liquidation”’ and ‘“‘expropriation’”’, it is clear that
it is intended to define Poland’s powers in regard to this point
and in the territory in question.

It follows that the differences of opinion contemplated by Ar-
ticle 23, which refers to Articles 6 to 22, may also include differences
of opinion as to the extent of the sphere of application of Articles 6
to 22 and, consequently, the difference of opinion existing between
the Parties in the present case.

In the course of the oral proceedings it was contended on behalf
JUDGMENT No. 6. — POLISH UPPER SILESIA 17

of Poland that the question was one of vested rights, a question
governed by Articles 4 and 5 of the Geneva Convention, in regard
to which the Court was not given jurisdiction. The German
Government, on the contrary, had maintained that the applicable
clauses are those contained in Articles 6 to 22. These conflicting
contentions, by emphasizing the fact that the difference of opinion
relates to the sphere of application of the articles last mentioned,
corroborate the view adopted by the Court.

3. — Poland considers that the Geneva Convention is not applic-
able and that, therefore, the Court has no jurisdiction, because,
as she contends, the property in question does not belong to German
nationals but to the Polish State, as successor of the German Reich
in the property rights under Article 256 of the Treaty of Versailles,
and that for this reason there is no question of liquidation or expro-
priation of an undertaking belonging to German nationals. In
regard to this reasoning, the Court adopts the following line of
argument : |

(a) It does not appear from the documents laid before the Court
and it has not even been contended that the industrial undertaking
under consideration at any time belonged, in its entirety, to
the German Reich. The German Reich had advanced, under the
contract of March 5th, r915, the funds for the purchase of the neces-
sary land and to construct the factory; for this reason it had been
entered in the land register as owner of the estate. But an under-
taking as such is an entity entirely distinct from the lands and
buildings necessary for its working, and in the present case it
can hardly be doubted that, in addition to the real property
which had belonged to the Reich, there were property, rights and
interests, such as patents and licences, probably of a very consi-
derable value, the private character of which cannot be disputed
and which were essential to the constitution of the undertaking.

As Article 6 of the Geneva Convention refers to undertakings
of “major industries” and as this article is intended to ensure the
continuity of economic life, the factory at Chorzow must be regarded
as a whole. Whatever may be the effect of Article 256 of the Treaty
of Versailles as regards real property which had belonged to the
Reich, the undertaking as such, in the opinion of the Court, falls
under the terms of Article 6 and the following articles of the
Geneva Convention.
JUDGMENT No. 6. —- POLISH UPPER SILESIA 18

It is true that the application of the Geneva Convention is
hardly possible without giving an interpretation of Article 256
of the Treaty of Versailles and the other international stipulations
cited by Poland. But these matters then constitute merely ques-
tions preliminary or incidental to the application of the Geneva
Convention. Now the interpretation of other international
agreements is indisputably within the competence of the Court if
such interpretation must be regarded as incidental to a decision on a
point in regard to which it has jurisdiction.

(0) It is established that the Bayrische Stickstoffwerke is
a German company the private character of which is not disputed.
This Company had, under the contract of March 5th, 1915, with
the Reich and also under the correspondence of December 24th to
28th, 1919, exchanged with the Oberschlesische Stickstoffwerke
a contract for the operation of the factory obliging and authorizing
it to work the factory under the same technical conditions as its
own factories. The taking over of the factory by Poland put an
end to this situation and consequently affected rights and interests
possessed by German nationals in Polish Upper Silesia. The real
property, the ownership of which Poland claims, was, at the time
when the Geneva Convention came into operation, entered in the
land register as the property of a German company which, as such,
falls within the scope of Article 6 of that Convention and whose
existence as a German company is not disputed.

The jurisdiction possessed by the Court under Article 23 in
regard to differences of opinion between the German and Polish
Governments respecting the construction and application of the
provisions of Articles 6 to 22 concerning the rights, property and
interests of German nationals is not affected by the fact that the
validity of these rights is disputed on the basis of texts other
than the Geneva Convention.

II,
Admissibility of the Suit.
The Polish Government has not confined itself to raismg an

objection to the Court’s jurisdiction to deal with the German
application concerning the factory of Chorzow which is now before
JUDGMENT No. 6. — POLISH UPPER SILESIA IQ

the Permanent Court of International Justice. As an alternative
it submits that this application cannot be entertained until the
Germano-Polish Mixed Arbitral Tribunal in Paris has given
judgment in the dispute regarding the same factory, which the
Oberschlesische Stickstoffwerke Company submitted to that Tribunal
on November roth, 1922.

Is this one of those grounds of defence based on the merits of the
case and calculated to cause the judge to refuse to entertain the
application, such as are generally called—in French law for
instance—by the name of fins de non-recevoir ? Or is it not rather.
a genuine objection, directed—like that which has just been con-
sidered by the Court—not against the action itself and the legal
arguments on which it is based, but against the bringing of the
action before the tribunal ?

In the case of a municipal court, it would be of some interest
to solve this question in order to determine at what stage in the
proceedings such a ground of defence might or should be put for-
ward. But, in estimating the value of the alternative submission
. to the effect that it should suspend judgment in the suit before it,
the Court has not to have regard to «the various codes of procedure
and the various legal terminologies” in use in different countries.

Whether this submission should be classified as an “objection”
or as a fin de non-recevoir, it is certain that nothing, either in the
Statute or Rules which govern the Court’s activities, or in the
general principles of law, prevents the Court from dealing with it
at once, and before entering upon the merits of the case ; for there
<an be no proceedings on the merits unless this submission is over-
ruled.

The Polish Government considers that because the Oberschle-
sische Stickstoffwerke Company brought an action in 1922 before
the Germano-Polish Mixed Arbitral Tribunal sitting in Paris for
the restitution of the factory at Chorzow to that Company, which
claims ownership of it, judgment on the application subsequently
submitted by the Reich to the Court in regard to the same industrial
concern must be suspended until judgment has been given in the
previous action, which is still pending.

The way in which the Polish Government states its point of
view and the deduction which it endeavours to make therefrom
show that it does not really advance the plea generally known as
litispendance. In point of fact this word does not occur in the

3
JUDGMENT No. 6. —- POLISH UPPER SILESIA 20

Polish reply ; it has only been used in the statements of Counsel,
and chiefly, it would seem, as a convenient expression. If, how-
ever, the plea were to be examined in accordance with the prin-
ciples generally accepted in regard to litispendance, the Court
would undoubtedly arrive at the conclusion that it is not well-
founded. It is a much disputed question in the teachings of legal
authorities and in the jurisprudence of the principal countries
whether the doctrine of litisbendance, the object of which is to
prevent the possibility of conflicting judgments, can be invoked in
international relations, in the sense that the judges of one State
should, in the absence of a treaty, refuse to entertain any suit
already pending before the courts of another State, exactly as
they would be bound to do if an action on the same subject had at
some previous time been brought in due form before another court
of their own country.

There is no occasion for the Court to devote time to this discussion
in the present case, because it is clear that the essential elements
which constitute ltispendance are not present. There is no ques-
tion of two identical actions: the action still pending before the
Germano-Polish Mixed Arbitral Tribunal at Paris seeks the restitu-
tion to a private company of the factory of which the latter claims
to have been wrongfully deprived ; on the other hand, the Permanent
Court of International Justice is asked to give an interpretation of
certain clauses of the Geneva Convention. The Parties are not the
same, and, finally, the Mixed Arbitral Tribunals and the Permanent
Court of International Justice are not courts of the same character,
and, a fortiori, the same might be said with regard to the Court and
the Polish Civil Tribunal of Kattowitz.

It would be useless to attempt to prove the contention of the
Polish Government in regard to this matter by pointing to the
alleged opposition in Article 23 of the Geneva Convention, and
saying that this article, which gives the Court jurisdiction to decide
differences of opinion respecting the construction and application
of Articles 6 to 22 of that Convention, has, in the final clause already
referred to, expressly reserved the «jurisdiction of the Germano-
Polish Mixed Arbitral Tribunal under the Peace Treaty of Versail-
les”, This reservation is easily explained. Section III of the Geneva
Convention, to which it refers, relates in several respects to matters
dealt with in the Sections of Part X of the Treaty of Versailles, in
regard to which no jurisdiction is provided corresponding to that
JUDGMENT No. 6. — POLISH UPPER SILESIA 27

subsequently conferred, by the first paragraph of Article 23 of the
Geneva Convention, upon the Permanent Court. It was, therefore,
essential to state that the right of appeal to the Court, given by this
clause to the contracting States as such, in no way affected the right
conferred by the Treaty of Versailles on private individuals who
had suffered a wrong to bring an action before the Mixed Arbitral
Tribunal. The distinction between the two spheres of jurisdiction
is thus clearly brought out, and paragraph 2 of Article 23, far from
lending support to the Polish submission, supplies in favour of the
adverse contention an argument which is of some value.

Thus, the alternative plea, submitted by the Polish Government
in the statement of its objections concerning the factory at Chorzow,
for the non-suiting of the applicant on the ground of inadmis-
sibility, like the principal objection to the Court’s jurisdiction, also

fails.

*
% *

Nor can the Court admit the fin de non-recevoir incidentally raised
against the German Application in the Polish Case and based on
Article 14 of the Covenant of the League of Nations.

It is true that this article, which is referred to in the Preamble of
the Statute of the Permanent Court of International Justice, provides
that the Court may give advisory opinions at the request of the
Council or Assembly of the League of Nations ; a request of this
kind directly submitted by a State will not be considered. But,
when the Government of the Reich submits under No. 2 (a) of its
Application that the attitude of the Polish Government in regard to
the Oberschlesische Stickstoffwerke and Bayrische Stickstoffwerke
Companies was not in conformity with Article 6 and the following
articles of the Geneva Convention, and under 2 (6) asks the Court,
should it confirm this submission, to give judgment concerning the
“attitude which should have been adopted by the Polish Govern-
ment in regard to the companies in question in order to conform
with the above-mentioned provisions”, it is evident that the applic-
ant State could not have intended to obtain an advisory opinion,
for which it was not entitled to ask. In point of fact itasksthe Court
for a decision, but leaves for its Case on the merits the development
of the submission set out under point 2, letter (8), of its application
and the exposition of the facts to be laid before the Court at that
JUDGMENT No. 6. — POLISH UPPER SILESIA 22

stage of the proceedings. The observations submitted by the
German Government in regard to Poland’s statement of objections
leave room for no doubt as to-the intentions of the former Govern-
ment, and the interrogative form in which the submission is formul-
ated does not suffice to establish a construction which would place
that submission outside the scope of Article 23 of the Convention on
which the whole German Application is based.

B. — The large agricultural Estates.
I.
Plea to the jurisdiction.

As regards the large agricultural Estates, the Court’s jurisdiction
is no less clear than in the case of the factory at Chorzow.

For the reasons already stated in regard to that case, the absence
of diplomatic negotiations proving the existence of the difference of
opinion which is required under Article 23 of the Convention, can-
not prevent the bringing of an action in the present case. More-
over, such absence would be of no practical importance, for even if
the application were on this ground declared premature, the Ger-
man Government would be free to renew it immediately afterwards.

The notice given by Poland, in the Monitor Polski of Decem-
ber 30th, 1924, fo the owners of large estates situated in Polish
Upper Silesia is based on Article 15, paragraph 1, sub-paragraph 1,
of the Geneva Convention which runs as follows :

{ Translation. | |
“Should the Polish Government desire to expropriate a
large estate, it must give notice of its intention to the owner
of the estate before January Ist, 1925.”

Germany is of opinion that ten of the notices thus given are not
in conformity with the provisions of Articles 9, paragraph 3,
sub-paragraph 2 ; 12, paragraph I ; 13, paragraph 2 ; and 17 of the
Convention.
JUDGMENT No. 6, — POLISH UPPER SILESIA 23.

The clauses in question are as follows:
[ Translation. ]
Article 9, paragraph 3, sub-paragraph 2.

“Rural estates which are principally intended to meet the
requirements of undertakings belonging to the group of major
industries (dairy farming estates, timber-raising estates, etc.)
shall be considered, for the purposes of this article, as.
forming part of the undertakings the requirements of which
they may serve.”

Article 12, paragraph x.

“Poland may expropriate estates of not less than roo hec-
tares of agricultural land (hereinafter called large estates)
belonging on April 15th, 1922, and on the date of notification
(Article 15) to German nationals who are not entitled to retain
their domicile in Polish Upper Silesia (Articles 40 and 42)
or to companies controlled by such German nationals. The
extent of such estates will be estimated in accordance with
the situation on April 15th, 1922.”

Article 13, paragraph 2.

“Agricultural estates which, in accordance with Article 9,
paragraph 3, sub-paragraph 2, are to be regarded as forming
part of undertakings belonging to the category of major
industries, shall not be included for the purposes of the cal-
culation of the total area of estates liable to expropriation,
and the provisions regarding the expropriation of rural prop-
erty shall not be applicable to them.”

Article 17.

“German nationals who, ipso facto, acquire the nationality
of an Allied or Associated Power by application of the pro-
visions of the Treaty of Versailles or who ipso facto acquire
Polish nationality by application of the present Convention,
shall not be regarded as German nationals for the purposes
of Articles 6 to 23.”
JUDGMENT No. 6. — POLISH UPPER SILESIA 24

The German Government argues in support of its contention
that in most cases these notices refer to estates which are princi-
pally intended to meet the requirements of undertakings belonging
to the category of major industries, and which are considered as
forming part of the undertakings, the requirements of which they
serve (Article 9, paragraph 3, sub-paragraph 2), and are not sub-
ject to the provisions regarding the expropriation of rural property
{Article 13, paragraph 2) ; in other cases the estates concerned are
not liable to expropriation, because their extent is less than 100
hectares of agricultural land (Article 12, paragraph 1), or because
they belong to persons who have ipso facto acquire Czechoslovak
nationality under Article 84 of the Treaty of Versailles, or Polish
nationality under Article 25, paragraph 1, of the Geneva Convention
(Article 17), or again because they belong to a company which
‘is not controlled by German nationals’, or to a city which “‘can-
not be regarded either as a German national or as a company
controlled by German nationals” (Article 12, paragraph 1).

Poland replies to these contentions that hitherto she has only
given notice of an intention to proceed to expropriation ; so that
up to the present there has been neither expropriation nor a deci-
sion to expropriate, and therefore the Court ‘is not yet competent”
and the application “‘is premature’.

It will, therefore, be seen that the Polish Government does not
attempt to deny that the subject matter of this part of the German
Application is governed by the above-mentioned provisions of the
Geneva Convention (which are to be found in Articles 6 to 22) ; it
recognizes that, in principle, these provisions apply to the property
in question and that this must be expropriated in accordance with
the articles above-mentioned. It therefore becomes clear that
the Polish Government accepts in principle the jurisdiction of the
Court in this matter; what it does dispute is that, as alleged by :
Germany, these provisions are to be interpreted as being compuls-
orily applicable—and therefore as giving the Court jurisdiction—
at the present moment when Poland has merely signified an inten-
tion to expropriate.

But this difference of opinion, even when limited in this way,
suffices to make it clear that the Court has jurisdiction. Accord-
ing to the wording of Article 23 of the Convention, it is precisely
JUDGMENT No. 6. — POLISH UPPER SILESIA 25

for cases in which ‘‘differences of opinion respecting the construction
and application of Articles 6 to 22 arise” between them that the
Court’s jurisdiction has been accepted by the two Governments.
But as the question of notification is governed by Article 15 in
conjunction with Articles 9, 12, 13 and 17, that is to say, by
provisions included between Article 6 and Article 22 of the Geneva
Convention, it is clear that the dispute which has arisen regarding
the question whether notice has or has not been given in accordance
with these provisions is a difference of opinion respecting the con-
struction and application of certain of the Articles 6 to 22 of the
Convention, and therefore falls within the scope of Article 23.
There are two distinct stages in the act of expropriating : notice
_of the intention to expropriate and the decree of expropriation.
Both are dealt with in Article 15 of the Convention.

How should Articles 9, 12, 13, 15 and 17 be interpreted in rela-
tion to these two stages? Should they be regarded as only concern-
ing the latter, which constitutes actual expropriation, or do they
also refer to the first step, the giving of notice ?

Poland takes the former view and Germany the latter.

There is, therefore, an undeniable difference of opinion.

Poland, however, argues that notice of an intention to expro-
priate is merely an invitation to those concerned to submit their
respective claims within a specified time, and that, therefore, the
terms of the Convention are not yet applicable to it.

This observation in no way alters the terms of the question.
The difference of opinion still subsists ; for Germany, on the other
hand, holds that, even reduced to these terms, the act of notification,
being an act connected with the execution of measures of expro-
priation, is undoubtedly an act in application of the Geneva Con-
vention and therefore can only relate to property liable to expro-
priation under the terms of Articles 9, 12, 13 and 17 of that Conven-
tion. Since the property dealt with in these articles can under no
circumstances: be expropriated, it is clear that it cannot be made
the subject of an intention to proceed to expropriation.

The Polish objection is not sound, not only because the right
of complaint granted by Poland to the owners is a matter of domestic
concern which cannot be used in argument against Germany, but
also because, according to Article 20, directly notice has been
JUDGMENT No. 6. — POLISH UPPER SILESIA 26

given, expropriation is possible under the Geneva Convention
without any restriction as to time, and thus becomes for the owner
a menace which may continue for two years ; and finally because
under the terms of the same Article 20 and of Article 16, once notice
has been given, the owner cannot, without the consent of the Polish
Government, alienate inter vivos either the estate to be expropriated
or its accessories, so that the giving of notice places serious res-
trictions on rights of ownership. |

It follows from what has been stated that a difference of opinion
exists between Germany and Poland respecting the construction
and application of Articles 9, paragraph 3, sub-paragraph 2; 12,
paragraph I ; 13, paragraph 2 ; 15 and 17 of the Geneva Convention
(all being provisions included between Article 6 and Article 22
of that Convention) in connection with the notice given to the
proprietors enumerated in the Application instituting proceedings ;
the Court, therefore, under the terms of Article 23 of the same Con-
vention, has jurisdiction also to reserve this part of the suit for
judgment on the merits.

IL.
Admissibility of the Suit.

In this part of her preliminary objections, Poland returns to the
question of the inadmissibility of the Application.
In regard to this question, Poland argues as follows.
Article 19, paragraph 2, of the Convention runs as follows :
{ Translation. | | :
“Should the Polish Government come to the conclusion
that an undertaking or estate really belongs to a German
national, or that a company is really controlled by German
nationals, and should the interested party, after notice has been
given, contend that this is not the case, the latter may, within
one month after receipt of notice, appeal to the Germano-
Polish Mixed Arbitral Tribunal for a decision. If necessary,
the Mixed Arbitral Tribunal may provisionally suspend expro-
priation proceedings.” |
Now the Polish Government says that “six of the proprietors.
named in the Application filed with the Court have had recourse to
this Arbitral Tribunal before which the cases are still pending”.
JUDGMENT No. 6. — POLISH UPPER SILESIA 27

But, besides the general considerations already set out in regard
to this matter in connection with the question of the factory at
Chorzow, considerations which apply with full force in the present
case, it must be added that, according to the statement of the Polish
Government itself, only six of the ten proprietors have appealed to
the Germano-Polish Mixed Arbitral Tribunal, and that in only two
cases out of these six has actual notice of proceedings been given.
Thus, even if the considerations referred to did not hold good, the
Court would retain jurisdiction to deal with the case in so far as it
concerns the other proprietors.

Furthermore, Article 19 of the Convention contemplates a situa-
tion entirely different from that which the Court has to consider ;
for it only applies to cases in which the Polish authorities are of
opinion that an undertaking or an estate really belongs to a German
national or that a company Is really controlled by German nationals,
and in which the interested Party contends that thisis not so. But,
as has been seen, the hypothesis submitted to the Court is entirely
different.

FOR THESE REASONS,
The Court,
having heard both Parties,

{. (x) In affaire I referred to in the plea filed by the Govern-
ment of the Polish Republic :

dismisses this plea ;

declares the Application to be admissible ;

and reserves it for judgment on the merits.

(2) In the affaires IT referred to in the plea filed by the Govern-
ment of the Polish Republic: .

dismisses this plea ;

declares the Application to be admissible ;

and reserves it for judgment on the merits.

II. Instructs the President to fix, in accordance with Article 33
of the Rules of Court, the times for the deposit of further docu-
ments of the written proceedings.
JUDGMENT No. 6. — POLISH UPPER SILESIA 28

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this twenty-fifth day of
August, nineteen hundred and twenty-five, in three copies, one of
which is to be placed in the archives of the Court, and the others
to be forwarded to the Agents of the Applicant and Respondent
Parties respectively. |

(Signed) Max HUBER,
President.

(Signed) A. HAMMARSKJOLD,
Registrar.

M. Anzilotti, while agreeing in the conclusions of the Court,
desired to add the following observations in regard to one point in
the statement of reasons.

Count Rostworowski, Polish National Judge, declaring that he
was unable to concur in the Judgment delivered by the Court, and
availing himself of the right conferred on him by Article 57 of the
Court’s Statute, delivered the separate opinion which follows
hereafter.

(Imitialled) M: H.
(Initialled) A. H.


136

            DÉCLARATION DE M. LE JUGE RANJEVA

   Je souscris aux conclusions de la Cour selon lesquelles il n’y a pas lieu
d’indiquer les mesures conservatoires sollicitées par la Partie demande-
resse. Je considère cependant comme insatisfaisante la démarche de la
Cour qui met l’accent sur les limites des arguments du demandeur en
reprochant à ce dernier de ne pas avoir suffisamment étayé ceux-ci. Si
l’observation peut paraître fondée dans les faits, elle ne donne pas entière
satisfaction au regard du régime de l’indication des mesures conserva-
toires. En effet, l’arrêt dans l’affaire LaGrand (Allemagne c. Etats-Unis
d’Amérique) a mis en évidence l’obligation qu’ont les parties de respecter
les mesures conservatoires indiquées par la Cour ; ce rappel a contribué à
lever l’ambiguïté qui marquait la question de l’applicabilité des disposi-
tions de l’article 94 de la Charte des Nations Unies aux ordonnances indi-
quant des mesures conservatoires. Ces dernières sont des décisions judi-
ciaires revêtues à l’égard des parties d’un caractère obligatoire, en
attendant l’arrêt définitif.
   L’examen de l’urgence, sous l’angle du risque de préjudice irréparable
en cas de non-indication de mesures conservatoires, représente le centre
de gravité de l’ordonnance et est au cœur de son économie générale.
Mais, le caractère obligatoire de la décision indiquant les mesures conser-
vatoires impose à la Cour de veiller à ce que celle-ci ne puisse être consi-
dérée comme un jugement provisoire susceptible d’hypothéquer pour le
futur les analyses et la décision sur le fond. L’examen des effets de ces
mesures ne suffit pas, en soi, pour écarter une telle éventualité ; aussi, cet
examen doit-il être complété par l’analyse de l’objet même des mesures
sollicitées.
   Il revient au juge de confronter, in limine, l’objet de ces mesures avec
celui des demandes au principal et d’écarter ainsi les demandes directes,
ou parfois indirectes, tendant en réalité à ce qu’un jugement provisoire
soit rendu. Une telle démarche est de nature, d’une part, à clarifier les
relations entre la procédure incidente et la procédure principale dans la
mesure où la Cour, en statuant au fond, n’est pas liée par les mesures
conservatoires et, d’autre part, à limiter la procédure incidente à l’examen
des seuls chefs urgents de la demande.

                                            (Signé) Raymond RANJEVA.

27