COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 44

TRAITEMENT DES NATIONAUX POLONAIS

ET DES AUTRES PERSONNES D’ORIGINE

OÙ DE LANGUE POLONAISE DANS LE
TERRITOIRE DE DANTZIG

AVIS CONSULTATIF DU 4 FÉVRIER 1932
XXillm SESSION

1932

XXIlrd SESSION
ADVISORY OPINION OF FEBRUARY 4th, 1932

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A.!B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 44

TREATMENT OF POLISH NATIONALS
AND OTHER PERSONS OF POLISH ORIGIN
OR SPEECH IN THE DANZIG TERRITORY

SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
PERMANENT COURT OF INTERNATIONAL JUSTICE

1932.
February 4th.

TWENTY-THIRD SESSION. Coneral lst:

February 4th, 1932.

TREATMENT OF POLISH NATIONALS
AND OTHER PERSONS OF POLISH ORIGIN
OR SPEECH IN THE DANZIG TERRITORY

Legal status of the Free City of Danzig.—Treaty of Versailles
of June 28th, 1919; Convention of Paris between Poland and the
Free City of Danzig of November goth, 1920; Constitution of the
Free City ; guarantee of the Constitution by the League of Nations.
— The vight of Poland to submit io the High Commissioner of
the League of Nations at Danzig disputes concerning the Consti-
tution (Treaty of Versailles, Art. 103; Convention of Paris,
Art. 39).—Interpretation of Article 104: 5 of the Treaty of
Versailles ; velation between that provision and Article 33, para-
graph 1, of the Convention of Paris; interpretation of the latter
provision. ‘

ADVISORY OPINION.

Before: MM. ADATCI, President; GUERRERO, Vice-President ;
Baron ROLIN-JAEQUEMYNS, Count RosTwoROoWSKI, e
MM. FROMAGEOT, ALTAMIRA, ANZILOTTI, URRUTIA,
Sir Ceci. Hurst, M. SCHÜCKING, Jhr. van EYsiINGA,
MM. Wane, Judges; Bruns, Judge ad hoc.

THE COURT, composed as above, gives the following opinion :
4
TREATMENT OF POLISH NATIONALS IN DANZIG 5

On May 22nd, 1931, the Council of the League of Nations
adopted the following Resolution :

“The Council,

Having regard to the letter of the High Commissioner
of the League of Nations in Danzig, dated March 31st,
1931, |
"Fraving regard to the contentions set out in the memor-
andum of the Polish Government, annexed to the said
letter,

Having regard to the contentions set out in the memor-
andum of the Danzig Government, also annexed to the
above-mentioned letter,

Requests the Permanent Court of International Justice
to give an advisory opinion, in conformity with Article 14
of the Covenant, on the two following questions :

‘(x) Is the question of the treatment of Polish
nationals and other persons of Polish origin or speech
in the territory of the Free City of Danzig to be
decided solely by reference to Article 104 (5) of the
Treaty of Versailles. and Article 33, paragraph 1, of
the Convention of Paris (and any other treaty pro-
visions in force which may be applicable), or also
by reference to the Constitution of the Free City;
and is the Polish Government accordingly entitled
to submit to the organs of the League of Nations,
by the method provided for in Article 103 of the
Treaty of Versailles and Article 39 of the Conven-
tion of Paris, disputes concerning the application
to the above-mentioned persons of the provisions
of the Danzig Constitution and other laws of Danzig?

(2) What is the exact interpretation of Article 104
(5) of the Treaty of Versailles and of Article 33,
paragraph x, of the Convention of Paris, and, if
the reply to question (x) is in the affirmative, of the
relevant provisions of the Constitution of the Free
City ?’

The Council requests the Governments of Poland and
Danzig to hold themselves at the disposal of the Court
with a view to supplying it with all relevant documents
-and explanations.

The Secretary-General is authorized to submit this
request to the Court, to give the requisite assistance in
the examination of the question, and, if necessary, to
make arrangements to be represented before the Court.”

5
| TREATMENT OF POLISH NATIONALS IN DANZIG. 6

In pursuance of this Resolution, the Secretary-General, on
May 23rd, 1931, transmitted to the Court a request for an
advisory opinion in the following terms:

“The Secretary-General of the League of Nations, .

in pursuance of the Council Resolution of May 2and,
I93I, and in virtue of the authorization given by the
Council,

has the honour. to submit to the Permanent Court of
International Justice an application requesting the Court,
in accordance with Article 14 of the Covenant, to give
an advisory opinion to the Council on the questions
which are referred to the Court by the Resolution of
May 22nd, 1931.

The Secretary-General will be prepared to furnish. any
assistance which the Court may require in the examina-
tion of this matter, and will, if necessary, arrange to be
represented before the Court.”

The request was registered in the records of the Registry of
the Court on May 28th, 1031. To the request were appended:

(1) a copy of the report to the Council on the question

of the treatment of Polish nationals and other persons of
Polish origin or speech in Danzig, presented by the British
representative, by which the above-mentioned Resolution
was submitted to the Council; ; :
. (2) a copy of a document circulated to the Council which
contains: (a) the letter from the High Commissioner to the
Secretary-General, dated March 31st, 1931; (0) the memor-
andum from the Polish Government, and (c) the memorandum
from the Government of the Free City of Danzig, to which
reference is made in the above-mentioned Resolution.

Under cover of a letter dated May 30th, 1931, the Secre-
tary-General also sent to the Registrar a copy of the minutes
of the meeting of the Council on May 22nd, 1931, when
the Resolution above mentioned was discussed and adopted..

In conformity with Article 73, paragraph I, sub-paragraph I,
of the Rules of Court, the request was communicated to
Members of the League of Nations and to States entitled
to appear before the Court. Furthermore, the Registrar, by
means of a special and direct communication, informed the
Governments of.the Polish Republic and of the Free City of
Danzig which were regarded by the Court as likely, in accord-

6
TREATMENT OF POLISH NATIONALS IN DANZIG 7

ance with Article 73, paragraph 1, sub-paragraph 2, of the
Rules, to be able to furnish information on the question
submitted to the Court for an advisory opinion, that the
Court was prepared to receive from them written statements
and, if they so desired, to hear oral arguments presented
at a public hearing to be held for the purpose; the repre-
sentatives of the interested Governments had already been
consulted as to the length of the time-limits within which
these Governments would be ready to file any written state-
ments they might desire to submit.

In these circumstances, and having due regard to the sug-
gestions made by the above-mentioned representatives and
likewise to the fact that the question submitted to the Court
had, either in the course of the proceedings before the High
Commissioner, or in those before the Council, formed the
subject of three written statements submitted by each of the ~
Governments concernedi, the President of the Court, by an
Order made on June ist, 1931, fixed September 17th, 1031,
as the date by which a written statement was to be filed
with the Registry by each of the two Governments, and
October 15th, 1931, as the date by which they were to file
a second statement “in case the Court or its President should
order or authorize its submission, after September 17th,
1931”. At the request of the Agent for the Government of
the Free City and with the consent of the Agent for the
Polish Government, these times were subsequently extended:
to October 1st and 29th, 1931, respectively. At the expira-
tion of the first of these time-limits, as thus extended, Memo-
rials had been filed on behalf of the Danzig’ and Polish
Governments. On October 5th, 1931, the Agent for the
Danzig Government requested the Court to authorize the
filing of a second written statement ; the Court having granted
this authorization, a “reply” by Danzig was filed within
the second time-limit fixed. The Agent for the Polish Govern-
ment did not present a second written statement.

’ Lastly, on June 4th, 1937, the Registrar addressed to ail
States parties to the Treaty of Versailles of June 28th, 19r0,
a communication drawing their attention to the rights con-

1 See list in Annex.
TREATMENT OF POLISH NATIONALS IN DANZIG 8

ferred upon them, in connection with the question before
the Court, by Article 73, paragraph 3, sub-paragraph 3, of
the Rules of Court.

In the course of public sittings held on December 7th,
8th, oth, xoth, rith, 14th and 15th, 1931, the Court heard
the oral arguments presented by Professor Erich. Kaufmann,
Agent, on behalf of the Danzig Government, and by
MM. Moderéw, Agent, and Ch. de Visscher, Counsel, on ‘behalf
of the Polish Government.

In addition to the statements and observations of the
interested Governments and the documents transmitted by
the Secretary-General, as mentioned above, the Court has
had before it a series of documents submitted either during
the written proceedings or at. the hearing, by the represent-
atives of the two Governments}.

The Court held that the question submitted to it for an
advisory opinion related to an existing dispute between the
Free City of Danzig and Poland, within the meaning of
Article 71, paragraph 2, of the Rules of Court. As one only
of these States, namely, Poland, had on the Bench a judge .
of its nationality, the Senate of the Free City of Danzig
availed itself of its right, under Article 71 of the Rules of
Court, to choose a judge ad hoc to sit in the case..

The submission of the case being in all respect regular, it
is in these circumstances that the Court is now called upon
to give its opinion.

*
* *

The immediate origin of the questions on which the Court is
called upon to give its opinion is to be found in a matter
recently submitted for decision by Poland to the High Com-
missioner of the League of Nations at Danzig.

The diplomatic representative of the Polish Republic at
Danzig had written to the High Commissioner on September 30th,
1930, requesting his decision, in accordance with Article 39
of the Paris Convention, “in regard to the unfavourable
treatment of Polish nationals and other persons. of Polish

1 See list in Annex.
TREATMENT OF POLISH NATIONALS IN DANZIG 9

origin or speech in the territory of the Free City of Danzig’”’.
At the same time the diplomatic representative has submitted
a series of conclusions, together with an explanatory memor-
andum, relating to the following points: public and private
education ; recognition of school certificates; freedom to use
the Polish language; nationality; paid labour ; acquisition of
landed property; allotment of dwellings; police registration ;
liberty of domicile and establishment.

In his explanatory memorandum, the diplomatic represent-
ative had declared that it had become clear that ‘‘the position
of the Polish population”, as established by Article 104 of the
Treaty of Versailles and Article 33 of the Convention of
Paris, was in danger. The Polish Government had therefore
felt obliged to solicit a decision by the High Commissioner,
and to intervene, “not only on legal grounds but also for
humanitarian reasons, in order to protect the interests of the
Polish nationals and the Polish population residing in the
territory of the Free City”.

The Polish request of September 30th, 1930, gave rise
to written proceedings dealing in detail with the points in
dispute. On December 3rd, 1930, the Free City of Danzig
submitted a “reply” to the Polish allegations and claims ; on
January 29th Poland replied, Danzig making a rejoinder on
March 25th and May 5th, .1931, in a ‘‘second reply”.

Meanwhile, the High Commissioner had written to the
Parties, under date March rth, 1931, inviting them to
furnish him with memorials, setting forth the legal argu-
ments on which they respectively relied in their. interpreta-
tions of Article 104 :'5 of the Treaty of Versailles and Article 33
of the Convention of Paris. These memorials were sent
to him on March 26th, 1931; and on March 31st following
he wrote to the Secretary-General of the League of Nations,
transmitting them and adding that “it would serve no useful
purpose to examine the numerous concrete points submitted
to the High Commissioner for decision in the request of the
TREATMENT OF POLISH NATIONALS IN ‘DANZIG 10

Polish Government of September 30th before the legal points
involved have been settled beyond dispute”. Accordingly,
with the agreement of the Parties, he drew the Council’s
attention to “‘the eminent desirability of asking the Permanent
Court of International Justice to give forthwith an advisory
opinion on the legal points on which the two Governments
differ’’.

The High Commissioner’s suggestion came before the Coun-
cil on May 22nd, 1931. Mr. Henderson, the Rapporteur,
endorsed the opinion expressed by the High Commissioner,
and submitted ‘to the Council, by which it was adopted,
the resolution appearing at the beginning of the present
Opinion.

In his report Mr. Henderson recapitulated the Polish argu-
ments and cited the submissions of the Polish memorandum
of March 26th, 1931, namely:

“1. The Free City of Danzig is prohibited by paragraph 5
of Article 104 of the Treaty of Versailles, by the second clause
of paragraph x of Article 33 of the Treaty of Paris, and by
the Constitution of the Free City, from making any discrim-
ination in administration and legislation between the German
majority, on the one hand, and Danzig citizens of Polish
origin, or Polish citizens or other persons of Polish origin
and. speech, on the other hand. This means in particular
that :

_ (a) Polish citizens in Danzig, in accordance with the Danzig
Constitution, enjoy full and entire equality of rights in
every domain of public life and of private law relations, and,
in particular, by Article 4 of the said Constitution, their
national development and, above all, the use of the mother-
tongue in education, in internal administration and in the
administration of justice are guaranteed to them;

(b) Polish citizens enjoy full and entire equality of rights
except political rights. In particular, the Free City of Danzig
is bound to guarantee to them their free national develop-
ment and especially the use of the mother-tongue in edu-
cation, internal administration and the administration of
justice, on..the same footing as Danzig citizens ;

(c) All other persons of Polish origin and speech enjoy the
same rights as Polish citizens.

10
TREATMENT OF POLISH NATIONALS IN DANZIG IT

2. It is for Poland to submit to the organs of the League
of Nations, by the method provided for in- Article 103 of the
Treaty of Versailles and Article 39 of the Treaty of Paris, any
dispute arising out of the execution of paragraph 5 of Article 104
of the Treaty of Versailles and Article 33 of the Treaty of
Paris; in particular, Poland has the right to submit to the
organs of the League of Nations disputes concerning the
observance of the Danzig Constitution and the application
of the laws of Danzig in regard to Poles who are Danzig
_ citizens.”

The Danzig arguments were summarized by the Rapporteur
in the following terms:

“Article 33 of the Paris Treaty of November goth, 1920,
forms the sole legal foundation for the settlement of the
minorities problem between the Free City of Danzig and the
Republic of Poland.

Article 33 of that Treaty, in accordance with the spirit .
and letter of the Treaty of Versailles, fulfils and takes the
place of Article 104, paragraph 5, of the Treaty of Versailles.

Under Article 33, paragraph 1, of the Paris Treaty, Danzig
is bound to apply to the Polish minorities treatment which
does not involve any discrimination as compared with the
other minorities, so that the members of the Polish minority
possessing Danzig nationality must be treated in accordance
with provisions similar to those which Poland applies in
Polish territory in execution of Articles 7, 8 and 9 of the Polish
Minorities Treaty, while the members of the Polish minority
not in possession of Danzig nationality must be treated accord-
ing to provisions similar to those which Poland applies in
Polish territory in execution of Article 2 of the Polish Minor-
ities Treaty.”

ae

Before entering upon an examination of the questions on
which the opinion of the Court is requested, it is desirable to
recapitulate the main facts regarding the origin and the
evolution of the Constitution of the Free City of Danzig and
of Article 33 of the Convention concluded between Poland
and Danzig on November gth, 1920, commonly known as the
Convention of Paris, for, in certain of its aspects, these facts
have a direct bearing on the present case.
TREATMENT OF POLISH NATIONALS IN DANZIG I2

*
Article 103 of the Treaty of Versailles lays down that:

“A Constitution for the Free City of Danzig shall be
drawn up by the duly appointed representatives of the
Free City in agreement with a High Commissioner to be
appointed by the League of Nations. This Constitution shall
be placed under the guarantee of the League of Nations.”

On February 13th, 1920, the Council of the League of
Nations approved a memorandum concerning the duties of
the High Commissioner of the League at Danzig, whom it
had just appointed. This memorandum provided that the
High Commissioner should submit the Constitution of the
Free City to the Council before it was formally approved.

The Constitution was drawn up by a Constituent Assembly,
which adopted it on August 11th, 1920. It was submitted
to the Council, in draft form, on August 24th through the
High Commissioner. The Council did not however make any
detailed examination of it till November 1920. After consider-
ing a report submitted by {Viscount Ishii dealing in the first
place with the definition of the “exact meaning of the
terms ‘protection’ by the League and ‘guarantee’ of the
Constitution by the League”, which are employed in Arti-
cle 103 of the Treaty of Versailles, the Council decided, on
November r7th, inter alia, that the Constitution of the Free
City should be placed under the guarantee of the League of
Nations, ‘‘with effect from the time of its establishment by
the Principal Allied and Associated Powers”, but that the
“Constituent Assembly” of Danzig should be invited to submit,
within three weeks, the final text of the Constitution,
revised in accordance with various changes indicated by the
Council.

It should in this connection be observed that the “Decision
constituting the City of Danzig as a Free City”, which was
signed on behalf of the Principal Powers on October 27th,
and on behalf of Danzig on November gth, 1920, provides
that it “shall take effect as from November 35th, 1920”; and
on that date the High Commissioner’s deputy formally pro-
claimed the establishment of Danzig and the adjacent territory
as a “Free City’.

- 12
TREATMENT OF POLISH NATIONALS IN DANZIG I3

On January 12th, 1922, the Council authorized the High
Commissioner to approve the Constitution as soon as certain
specified conditions had been complied with by the Free City.
Accordingly, by a letter dated May 11th, 1922, the High
Commissioner declared that he approved the Constitution, as
successively amended at the invitation of the Council of the
League of Nations. On May 13th, 1922, the Council approved
a report from the High Commissioner recording this event, and
took note, at the same time, of his decision accepting the
Constitution of the Free City of Danzig in conformity with
Article 103 of the Treaty of Versailles.

Article 104 of the Treaty of Versailles provided that :

“The Principal Allied and Associated Powers undertake
to negotiate a treaty between the Polish Government and
the Free City of Danzig, which shall come into force at
the same time as the establishment of the said Free City,
with the following objects:

5° to provide against any discrimination within the Free
City of Danzig to the detriment of citizens of Poland and
other persons of Polish origin or speech.”

The work of drawing up the convention provided for in
Article 104 of the Treaty of Versailles had been initiated on
May 7th, 1920, when the Conference of Ambassadors adopted
a resolution to the effect that it was desirable that the said
convention should be concluded as early as possible, and invit-
ing Poland and Danzig to continue and to complete in a
short time .the necessary preparatory discussions under the
chairmanship of the representative of the Allies. On July zith,
1920, the Supreme Council had approved a “Decision concerning
Danzig” to the same effect.

To this end, preliminary drafts had been prepared both by
Poland and Danzig, and had been the subject of an initial
exchange of views at Paris in September 1920, after which a
second preliminary draft, dated September zoth, had been
submitted by the Polish representatives. The first Polish draft

13
TREATMENT OF POLISH NATIONALS IN DANZIG I4

contained a Chapter II (nine articles), dealing with “Public
Rights”, and a Chapter HII (six articles), dealing with. “Public
Education”’; these chapters regulated, in detail, both the situa-.
tion of minorities in the Free City and the rights of Polish
nationals at Danzig. The Danzig preliminary draft contained
an Article VIII (fourteen paragraphs), dealing with the ‘Rights
of nationals of both the contracting Parties” {(Rechte der beider-
seitigen Staatsangehürigen) ; on the other hand, with regard
to “the minority rights of Danzig nationals of Polish origin
or speech’’, the article referred to the terms of the Constitu-
tion. The second Polish preliminary draft presented the same
features as the first, in regard to the point in question, viz.:
the detailed regulation (two chapters and eighteen articles) of
the rights of minorities, and in particular of Polish nationals
at Danzig.

The communications between the Conference of Ambassadors
and the Polish delegation] have not been submitted to the
Court, but it is an established fact that on October 16th,
1920, the Conference transmitted to the Danzig delegation the
text of a ‘Draft Convention between Poland and the Free
City of Danzig provided for in Article 104’ of the Treaty of
Versailles’, with a request for that delegation’s observations

upon it. In this text, the matters dealt with in the detailed
| provisions of the preliminary drafts concerning the rights of
foreigners were settled by an Article 30, worded as follows:

“The Free City of Danzig undertakes to apply to racial,
religious and linguistic minorities provisions identical with those
which are applied by Poland on Polish territory, in execution
of Chapter I of the Treaty concluded at Versailles on
June 28th, r9r9, between Poland and the Principal Allied and
Associated Powers, with a view, in particular, to ensuring the
application of the provisions laid down in Article 104, para-
graph 5, of the Treaty of Versailles with Germany ?.”

The Danzig observations (dated October 18th) upon the draft
of October 16th, 1920, were not specially concerned with
Article 30 of the draft.

On October 20th, the Conference of Ambassadors sent to the
Danzig delegation a revised text of the draft convention, in
which Article 30 reappeared, without any change; this text of
the convention was described as “‘definitive’, and the covering

1 Translation communicated by the Danzig Government. |

14
TREATMENT OF- POLISH NATIONALS IN DANZIG 15

letter added that “the. Conference could not agree to make any
further alterations in. this document”; the convention must
be signed on October 23rd following. It should be observed
that a note “concerning the draft Constitution .... from the
point of view of the Treaty of Versailles’ accompanying the
letter of October 2oth, 1920, under cover of which the Con-
ference transmitted to the Council of the League of Nations,
at the Jatter’s request, the “definitive text” of the convention
for consideration during its session at Brussels, contained the
following passage, the import of which is examined below:

«€

. It is well known that the Treaty [of Versailles] provides
for the conclusion of a convention between Danzig and Poland
which is to ensure for Poland in regard to Danzig certain ...
guarantees regarding treatment (equality of treatment).”

The Polish delegation refused to accept the draft of Octo- :
ber 20th ; the Danzig delegation, on the other hand, had decided
to sign it. In these circumstances, the two delegations were
invited to undertake further negotiations; the Danzig delega-
tion however declined to do so, pointing out that, according
to the covering letter of October 2oth, the text of the draft
- bearing that date was definitive and could not be further
altered. Thereupon the Conference of Ambassadors assured
the Danzig delegation, in a letter dated October 28th, 1920,
that the Conference of Ambassadors had never intended to call
in question ‘‘the essential solutions’ embodied in the draft
treaty sent to the delegation under cover of its letter of
October 2oth, 1920.

As a result, some unofficial conversations took place. As
appears from a letter written on November 5th, 1920, by the
President of the Danzig delegation to the President of the
Conference of Ambassadors, these negotiations resulted in
some draft amendments to the original text. One of the pro-
posed amendments, however, affected the former Article 30,
which the Polish delegation desired to modify, so as to read
as follows :

4e

…. and to provide, in particular, against any discrimina-
tion in legislation or in the conduct of the administration
to the detriment of nationals of Poland and other persons of
Polish origin or speech +”’.

1 Translation communicated by the Secretariat of the League of Nations.

T5
TREATMENT OF POLISH NATIONALS IN DANZIG 16

The Danzig delegation thereupon asked for confirmation of
their view that this amendment did not ipso facto invest
Polish nationals with political rights, such rights appertaining
solely to nationals of the Free City. The required confirmation
was given in a letter dated November 6th; whereupon the
Convention was signed on November goth, 1920.

Article 33 of the Convention, which corresponds to Article 30
of the drafts of October 16th and October 2oth, is worded
as follows :

“The Free City of Danzig undertakes to apply to racial,
religious and linguistic minorities provisions similar to
those which are applied by Poland on Polish territory in
execution of Chapter I of the Treaty concluded at Ver-
sailles on June 28th, 1919, between Poland and the
Principal Allied and Associated Powers, to provide, in parti-
cular, against any discrimination, in legislation or in the
conduct of the administration, to the detriment of nation-
als of Poland and other persons of Polish origin or
speech, in accordance with Article 104, paragraph 5, of
the Treaty of Versailles.

The provisions of Articles 14 to 19 of the Treaty, con-
cluded at Versailles between the Principal Allied and Asso-
ciated Powers and Poland on June 28th, 1919, as also
the provisions of Article 89 of the Treaty of Versailles
with Germany, shall equally apply to the Free City of
Danzig.”

It should be recalled that Viscount Ishii’s report, which
was presented to the Council of the League of Nations on
November th, 1920, and has already been referred to,
contains the following comment on the above article:

“According to Article 33, the Free City undertakes to give
protection to. minorities of race, religion and language, in
accordance with the stipulations contained in the Treaty of
June 28th, 1919, concluded between Poland and the Principal
Allied and Associated Powers; these stipulations have already
been placed under the guarantee of the League by a Reso-
lution of the Council dated February 13th, 1920.”

Viscount Ishii, after pointing out that the text submitted
to the Council at Brussels, in October 1920, had since been
somewhat modified, went on to state, in his report, that

16
TREATMENT OF POLISH NATIONALS IN DANZIG 17

“nevertheless the final text does not differ in any vital
point, or in any point of interest to the League, from the
draft report submitted to the Council at Brussels”.

This was the draft containing the text of Article 30
-quoted above.

Article 38 of the Convention of November gth, 1920,
between Poland and Danzig lays down that

‘further agreements shall be concluded between Poland
and the Free City on all questions not dealt with in the
present Treaty’.

In pursuance of this clause, an agreement between Poland
and the Free City was concluded at Warsaw on October 24th,
1921. The first section (Art. r to 44) of that agreement,
which was followed at a later date by a number of supplementary
agreements, deals with ‘Polish and Danzig nationals” and
regulates such questions as: conditions for naturalization at
Danzig, frontier traffic, permission to engage in commerce
and industry, acquisition and disposal of movable and
immovable property. On the other hand, the “Final Provi-
sions” include an article, No. 229, which deals with “‘Reser- :
vations arising out of Article 33 of the Convention” (of
Paris), and lays down that:

“Whereas the Polish Republic, relying on the provisions
of Article 104, point 5, of the Treaty of Peace, and
Article 33, paragraph 1, of the Polish-Danzig Convention
of November gth, 1920, claims more extensive rights
than those provided in the present Agreement, and
whereas the Free City of Danzig does not acknowledge
these rights, the Polish Republic expressly reserves these
more extensive rights, particularly in regard to the
extent of the minority rights of Polish nationals in the
Free City of Danzig, and in regard to prohibition of
residence 1.”

The situation resulting from this article subsequently gave
rise to a number of practical difficulties.

Thus, for example, in July 1923, the Council of the League
of Nations was called on to consider a declaration by the
Polish representative dealing, inter alia, with the interpretation
of the clause provided for ‘‘in the. Treaty of Versailles and

1 Translation by the Registry.
17
TREATMENT OF POLISH NATIONALS IN DANZIG 18

later on in the Convention of Paris” to the effect that “no
discrimination shall be made in the Free City to the detri-
ment of Polish nationals and other persons of Polish origin
or speech”. The Council was content, in regard to this
point, at its meeting on July 7th, 1923, to recommend that
“Poland and Danzig should bring before the High Commis-
sioner without delay any legitimate grievance which either
may consider it has against the other’, a recommendation
which the Council took occasion, on March 13th, 1925, to
confirm and emphasize.

In pursuance of the decisions adopted on july 7th, 1923,
the High Commissioner transmitted to the Council, under
cover of a letter dated August 31st, 1923, a “Declaration”
setting forth the results of the negotiations which had taken
place between the Parties under his chairmanship. One
chapter of this declaration. is devoted to Article 33 of the
Convention of Paris. It contains the following passage :

“Both Parties state that the interpretation by each Party
of Article 33.is so widely divergent that there appears to be
no possibility of reconciling their different points of view
on this fundamental question, which will therefore have to be
answered by means other than an agreement between the two
Governments. In the meantime, certain disputes arising out
of this difference of opinion as to the meaning of the
paragraph are in need of settlement as a provisional measure
without prejudice to the final decision on the point at issue.”

In his covering letter, transmitting the above declaration,
the High Commissioner added, for his own part, that:

“The only question on which it has not been possible to
arrive at an agreement is one of vital importance to both
Parties. It is the question of the legal status of Polish
citizens in the territory of the Free City, which is dealt
with in paragraph 33 of the Treaty of Paris and thé respective
paragraph of the Treaty of Versailles... The matter turns
upon two different and perfectly dona fide interpretations of
certain paragraphs in the Tieaties, on which there will, I
think, be required an opinion or a decision of .some judicial
authority.”

The Resolution adopted. by the Council, on “September Ist,
1923, concerning the High Commissioner’s report, does not,
18
TREATMENT OF POLISH NATIONALS IN DANZIG 19

however, mention the question of Article 33 of the Con-
vention of Paris; and when, in 1924-1925, the Council had
once more to consider a number of questions arising out of
that article, it again refrained from giving any decision on
the merits, and confined itself to adopting, on June 11th,
1925, a Resolution concerning the procedure before the High
Commissioner. It is in these circumstances that the problem
is now referred to the Court in order that the questions of
principle involved may receive a solution.

*
* *

The two questions submitted to the Court are as follows:

“(1) Is the question of the treatment of Polish nationals
and other persons of Polish origin or speech in the terri-
tory of the Free City of Danzig to be decided solely by
reference to Article 104 (5) of the Treaty of Versailles
and Article 33, paragraph 1, of the Convention of Paris
(and any other treaty provisions in force which may be
applicable), or also by reference to ‘the Constitution of
the Free City; and is the Polish Government accordingly
entitled to submit to the organs of the League of Nations,
by the method provided for in Article 103 of the Treaty
of Versailles and Article 39 of the Convention of Paris,
disputes concerning the application to the above-mentioned
persons of the provisions of the Danzig Constitution and
other laws of Danzig?

{2} What is the exact interpretation of Article 104 (5)
of the Treaty of Versailles and of Article 33, paragraph 1,
of the Convention of Paris, and, if the reply to question (x)
is in the affirmative, of the relevant provisions of the
Constitution of the Free City ?”

With regard to the first of these questions, the Court consid-
ers it necessary to determine at the outset the precise meaning
of the question as submitted.

The question consists of two parts. The first part relates
to the sources of law applicable to the question of the treat-
ment of Polish nationals and other persons of Polish origin
or speech in the territory of the Free City of Danzig; here
the point is whether, besides the treaty stipulations mentioned
in the question, the Constitution of the Free City is also applicable.
The second part asks whether the Polish Government is entitled

3 19
TREATMENT OF POLISH NATIONALS IN DANZIG 20

to resort to the procedure provided for in Article 103 of
the Treaty of Versailles and Article 39 of the Convention of
Paris in disputes concerning the application to the above-
mentioned persons of the provisions of the Danzig Constitution
and other laws of Danzig. Are these two parts to be read
together as one question, or do they constitute two separate
and distinct questions? In other words, does the first part
refer to the applicability of the Danzig Constitution as a
general question, without reference to the right of the Polish
Government to resort to the procedure laid down in Article 103
of the Treaty of Versailles and Article 39 of the Conven-
tion of Paris, or does it refer to the applicability of the
Constitution solely from the point of view of the Polish
Government’s right to resort to such procedure in disputes
concerning the application to Polish nationals and other per-
sons of Polish origin or speech, of the provisions of the Danzig
Constitution and other laws of Danzig?

So far as the Court is aware, no question of the right of
invoking the Danzig Constitution by private individuals before
Danzig tribunals or by the League of Nations as guarantor
of the Constitution has been raised in proceedings before the
High Commissioner or the Council. The terms of the dispute
between Poland and Danzig leading to the present proceedings
before the Court and the use of the word “accordingly” (par
conséquent) in the text of the question point to the con-
clusion that the first part is asked in view of the consequence
contained in the second part, so that they are logically
connected with each other and are to be considered as one
question. Moreover, the Council Resolution expressly refers to
“two questions’ on which the Council requests the Court to
give an advisory opinion; and the second question says: “if
the reply to question (x) is in the affirmative’. Reading the
question in this sense, the Court will proceed to examine the
points raised by it.

20
TREATMENT OF POLISH NATIONALS IN DANZIG 21

The Constitution of the Free City presents certain pecu-
liarities which are not to be found in the constitutions of other
countries. By Article 103 of the Treaty of Versailles, the
Constitution of the Free. City was to be drawn up by the
duly appointed representatives of the Free City in agreement
with a High Commissioner to be appointed by the League of
Nations, and was to be placed under the guarantee of the
League. It was in pursuance of this article that the Consti-
tution of the Free City was drawn up, and by the Council
Resolution of November r7th, 1920, it was placed under
the guarantee of the League. According to Viscount Ishii’s
report, which was adopted by the Council on November 17th,
1920, the guarantee of the League implies :

“(x) that this Constitution will have to obtain the approval
of the League of Nations ; |

(2) that the Constitution can only be changed with the
permission of the League of Nations; and

(3) that the constitutional life of the Free City of Danzig
must always be in accordance with the terms of this Consti-
tution”. .

The League, as guarantor of the Constitution, is therefore
concerned not merely with the text of the Constitution, but
also with the proper application of it. It was at the request
of the League that an article was imserted in the definitive
text of the Constitution as Article 42, reading:

“The Senate of the Free City shall furnish to the
League of Nations at any time upon the request of the
latter, official information regarding the public affairs of
the Free City.”

' The object of this provision is obvious. It is to enable the
League to exercise its rights and fulfil its duties concerning
inter alia the actual application of the Constitution.

From what has been said above, it follows that the League
of Nations, as guarantor of the Constitution of the Free City,
has the right—which, in. practice, it exercises through the
Council—as well as the duty, to intervene in the event of an
erroneous application by Danzig of its Constitution.

21
TREATMENT OF POLISH NATIONALS IN DANZIG 22

The question submitted to the Court does not, however,
envisage the right of the Polish Government to have recourse
‘to the League, in the latter’s capacity as guarantor of the Danzig
Constitution. It relates solely to the right of the Polish Govern-
ment acting in its own name, to submit to the organs of the
League of Nations, by the method provided for in Article 103 of
the Treaty of Versailles and Article 39 of the Convention of Paris,
disputes concerning the application of the provisions of the
Constitution and other laws of Danzig to Polish nationals and
other persons of Polish origin or speech—in other words, to
resort to the compulsory arbitration of those organs.

As the scope of the two above-mentioned articles is not
identical, they must be examined separately.

The relevant passage of Article 103 of the Treaty of
Versailles is paragraph 2, which provides as follows:

“The High Commissioner will also be entrusted with
the duty of dealing in the first instance with all differ-
ences arising between Poland and the Free City of Danzig
in regard to this Treaty, or any arrangements or agree-
ments made thereunder.”

This paragraph makes no mention of the Constitution of the
Free City as a subject within the compulsory arbitral juris-
diction of the High Commissioner. The fact that the Constitution
was drawn up with the collaboration of the League and has
been placed under the guarantee of the League is, of course,
of great importance in all questions affecting the relations between
Danzig and the League, but this fact cannot, in the opinion .
of the Court, confer on the Constitution, within the meaning
of Article 103, paragraph 2, of the Treaty of Versailles, the ©
legal character of an arrangement or agreement ‘‘made there-
under”. .

Article 39 of the Convention of Paris is wider in character.
It provides as follows :

“Any differences arising between Poland and the Free
City of Danzig in regard to the present Treaty or to any
subsequent agreements, arrangements or conventions, or
to any matter affecting the relations between Poland and:
the Free City, shall be submitted by one or the other
Party to the decision of the High Commissioner, who

22
TREATMENT OF POLISH NATIONALS IN DANZIG 23

shall, if he deem it necessary, refer the matter to the
Council of the League of Nations.”

According to this article, and quite apart from questions
relating either to the Convention itself or to “‘subsequent agree-
ments, arrangements or conventions’, two conditions must be
fulfilled in order to justify either Party to the Convention in
submitting disputes to the High Commissioner, namely, (1) the
dispute must be a difference “arising between Poland and the
Free City’, and (2) it must relate to a matter “‘affecting the
relations between Poland and the Free City”. The point on
which the Court is asked to give its opinion amounts therefore
to this: does a dispute concerning the application of the
Danzig Constitution and other laws of Danzig to Polish nation-
als and other persons of Polish origin or speech, fulfil the
two conditions mentioned above ?

The Polish Government contends that all constitutional and
treaty restrictions upon the independence of the Free City are
organic limitations which are so intimately connected with one
another that they reveal a “unity of purpose” ; that the guar-
antee of the Constitution by the League, being subordinated
to the respect of the treaty rights of Poland, constitutes an
inseparable element of the legal status of Danzig; that this
legal status is swi generis; and that consequently the ordinary
legal distinction between matters of a domestic and of an inter-
national character does not hold good in the present case.
According to the Polish Memorial, ‘‘these questions cannot be
answered purely and simply by reference to the prevailing
legal conceptions governing the interrelationship between the
municipal flegal system and the international legal system’;
apart from this, the Polish Government in no way disputes
the principle that in general the application of a constitution
is essentially a matter of domestic concern.

The Court is unable to accept the contention of the Polish.
Government. In its opinion, the fact that the legal status
of Danzig is sw generis does not authorize it to depart from
the ordinary rules governing relations between States and to
establish new rules for the relations between Poland and Dan-
zig. The general principles. of international law apply to

1 Translation by the Registry.
23
TREATMENT OF POLISH NATIONALS IN DANZIG 24

Danzig subject, however, to the treaty provisions binding upon
the Free City and to decisions taken by the organs of the
League under these provisions. The peculiar character of the
Danzig Constitution, as has been said above, affects only
the relations between Danzig and the League. A violation or
an erroneous application of the Constitution by Danzig is, there-
fore, so far as international relations are concerned, a matter
solely between the League, as guarantor, and Danzig. With
regard to Poland, the Danzig Constitution, despite its pecu-
harities, is and remains the Constitution of a foreign State.
Any grievance which Poland may allege against the Free City
arising out of the application by the latter of its Constitution
as such cannot therefore give rise between Poland and the
Free City of Danzig to differences in regard to a matter
affecting the relations between Poland and the Free City within
the meaning of Article 39 of the Convention of Paris; differ-
ences. submitted to the High Commissioner under these condi-
tions cannot therefore be entertained by him.

It should however be observed that, while on the one hand, |
according to generally accepted principles, a State cannot rely, |
as against another State, on the provisions of the latter’s ©
Constitution, but only on international law and international
obligations duly accepted, on the other hand and conversely,
a State cannot adduce as against another State its own
Constitution with a view to evading obligations incumbent upon
it under international law or treaties in force. Applying
these principles to the present case, it results that the question
of the treatment of Polish nationals or other persons of Polish
origin or speech must be settled exclusively on the bases of
the rules of international law and the treaty provisions in
force between Poland and Danzig.

The application of the Danzig Constitution may however
result in the violation of an international obligation incumbent
on Danzig towards Poland, whether under treaty stipulations
or under general international law, as for instance in the case
of a denial of justice in the generally accepted sense of that
term in international law. On this point, the Court refers
to its Advisory Opinion No. 15; in this Opinion—which deals

24
TREATMENT OF POLISH NATIONALS IN DANZIG 25

with the jurisdiction of the Danzig Courts in regard to pecu-
niary claims against the Polish Administration of Danzig railway
officials who have passed into the Polish service—the Court,
whilst upholding this jurisdiction, adds that this conclusion
does not affect the right conferred on Poland by Article 39
of the Convention of Paris to resort. to the international
procédure provided for in that ‘article, if, for instance, a
decision of the Danzig Courts should conflict, either with the
_general principles of international law or with the rules govern-
“ing the relations between Poland and Danzig. However, in
cases of such a nature, it is not the Constitution and other
laws, as such, but the international obligation that gives rise
to the responsibility of the Free City. This is in conformity
with the general principle of the international responsibility of
States and with the decision given by the Court in the case
concerning certain German interests in Polish Upper Silesia
(Judgment No. 7) and is, moreover, admitted by the Govern-
ment of the Free City in its written statement submitted to
the Court. Should such a case arise, Poland would: undoubt-
edly be entitled to submit it to the organs of the League
under Article 103 of the Treaty of Versailles and Article 39
of the Convention of Paris.

The question put to the Court relates also to the application
of “other laws of Danzig’. As, in the opinion of the
Court, the peculiar characteristics of the Danzig Constitution
do not bring it within the domain of the international relations
between Danzig and Poland, it follows a forttori that the other
laws of Danzig are, similarly, matters of domestic concern, and
that questions relating to their application cannot be submitted
to the organs of the League by the compulsory arbitral procedure
mentioned above.

*

The Court would point out that the foregoing must not be
taken to mean that it has sought to give a complete inter-
pretation of Article 39 of the Convention of Paris. The Court
has not lost sight of the Council Resolution of June xith, 1925,
with reference to procedure before the High Commissioner,
and has only dealt with the question in so far as is necessary
for the purposes of the present case.

25
TREATMENT OF POLISH NATIONALS IN DANZIG 26

*
* *

The Court will now pass to the second question, which
reads : |

“{2) What is the exact interpretation of Article 104

(5) of the Treaty of Versailles and of Article 33, para-

graph 1, of the Convention of. Paris, and, if the reply to

question (I) is in the affirmative, of the relevant provi-
sions of the Constitution of the Free City ?”

First, as to the interpretation of Article 104:5 of the
Treaty of Versailles. This article reads as follows:

“The Principal Allied and Associated Powers undertake
to negotiate a treaty between the Polish Government and
the Free City of Danzig, which shall come into force at
the same time as the establishment of the said Free
City, with the following objects:

.

(5) to provide against any discrimination within the
Free City to the detriment of citizens of Poland and :
other persons of Polish origin or speech.”

Article 104 of the Treaty of Versailles contains a mandate
given by the signatories of the Treaty and accepted by the
Principal Allied and Associated Powers to negotiate a treaty
between Poland and Danzig with certain specified objects,
which treaty was to come into force at the same time as the
establishment of the Free City. The objects, of which one is
set out in paragraph (5), were expressed in the form of certain
general principles, the precise scope and mode of application
of which were to be defined by the terms of the treaty
to be negotiated. This appears more clearly from the French
text of the article.

In this connection, the following passage from the Resolu-
tion of the Conference of Ambassadors of May 5th, 1920, is.
worth quoting :

“The Conference of Ambassadors, firmly resolved to

ensure the strict execution of the stipulations of the
Treaty of Versailles relative to Danzig by guaranteeing

26:
TREATMENT OF POLISH NATIONALS IN DANZIG 27

to the population of the Free City as well as to the
Polish Government the free exercise of the rights con-
ferred upon them by the Treaty, and firmly resolved also
not to tolerate any action in any quarter calculated to
disturb the operation of the system of which the main
lines have been settled by Articles 102 to 107 (inclusive) of
the Peace Treaty .... declares that the convention referred
to in Article 104 should be concluded as soon as possible 1.”

The Treaty of Versailles therefore merely indicates the
‘main lines” of the régime of the Free City. Moreover, the
language used in the Resolution above quoted admits of
the conclusion that, in the opinion of the Conference of
Ambassadors, the advantages guaranteed to Poland by Arti-
cle 104 of the Treaty of Versailles were to be secured to her
by the future convention to be concluded between Poland
and Danzig and that the guarantee became effective between
Poland and Danzig only in virtue of the latter convention.

The object of Article 104, paragraph (5), is to provide
against any discrimination to the detriment of citizens of
Poland and other persons of Polish origin or speech. The
first point to be considered is the meaning of the expression :
“other persons of Polish origin or speech”. It has been inter-
preted by both Governments concerned to include Danzig
citizens as well as citizens of other States, provided they are
of Polish origin or speech. The Court does not therefore con-
sider it necessary to go further into this question, which
henceforth is of theoretical interest only, and it adopts the
view that the expression covers all persons of Polish origin
or speech (other than Polish citizens) regardless of their
nationality.

It will be observed that the group of persons which the
signatories of the Treaty of Versailles had in mind are those
who possess certain attributes, namely, Polish citizenship,
Polish origin, or Polish speech.

The prohibition against discrimination can best be understood
in the light of the circumstances which led to the creation
of Danzig as a Free City. The separation of Danzig from
Germany was contrary to the wishes of the German people.

1 Translation provided by the Danzig Government.

4 27
TREATMENT OF POLISH NATIONALS IN DANZIG 28

Almost the whole of the population of that city was German,
and the Peace Conference, in order to assure to Poland free
and secure access to the sea, decided to make Danzig a Free
City without incorporating it in Poland. In this respect, some
apprehension might be entertained lest the Polish ‘people
in Danzig would be exposed to discriminatory measures on
the part of the Free City for no other reason than that they
were Poles. An unsympathetic or even hostile attitude in a
community towards a group of persons merely because of
their possessing a particular attribute, e.g. nationality, origin,
race or religion, is not without precedent. It is natural to
suppose that it was with a view to preventing any such dis-
criminatory measures that the authors of the Treaty of
Versailles thought it desirable to prescribe as one of the objects
of the treaty between Poland and Danzig the terms of which
were to be negotiated by the Principal Allied and Associated
Powers, that a clause prohibiting such discriminatory measures .
should figure therein. It is precisely because of their Polish
character that discrimination against Polish nationals and other
persons of Polish origin or speech is prohibited at Danzig.

On the other hand, the injunction “to provide against any
discrimination to the detriment of” these persons is of general
application, in so far as such discrimination is made on account
of Polish citizenship, origin or speech.

It should be remarked in this connection that the prohi-
bition against discrimination, in order to be effective, must
ensure the absence of discrimination in fact as well as in law.
A measure which in terms is of general application, but in
fact is directed against Polish nationals and other persons of
Polish origin or speech, constitutes a violation of the prohi-
bition. A similar view has already been expressed by the
Court in its Advisory Opinion No. 6 relating to German
settlers in Poland. Whether a measure is or is not in fact
directed against these persons is a question to be decided
on the merits of each particular case. No hard and fast
rule can be laid down.

28
TREATMENT OF POLISH NATIONALS IN DANZIG 29.

The Polish Government contends that the stipulation in
question prohibits any discrimination to the detriment of
Polish citizens and other persons of Polish origin or speech
as compared with Danzig citizens of German origin; in other
words, that the former are entitled to national treatment.
The Polish Government, however, in its interpretation, makes
an express exception with regard to political rights (the
right to vote and to be elected) and the exercise of public
functions ‘‘which would be the expression of the attributes
of the territorial power of the Free City”. Moreover, accord-
ing to the submissions in the Polish memorial of March 26th,
1931, reproduced above, and which have not been with-
drawn, the Polish Government contends that Polish citizens
and other persons of Polish origin or speech are entitled
to the same treatment as Danzig citizens of Polish origin
in so far as concerns “their free national development” and
especially “the use of the mother-tongue in education, internal
administration and the administration of justice’. Here the
comparison is not with Danzig citizens belonging to the Ger-
man majority, but with Danzig citizens belonging to the Polish
minority. |

With regard to this interpretation, the following observations
may be made: |

In the first place, the text does not say between whom no
discrimination is to be made. The Polish argument makes
a very important addition, namely, a‘ standard of comparison ;
this addition finds no support in the text.

In the second place, the two exceptions suggested by the
Polish Government not only find no support in the text, but
are directly contrary to the very wide terms of the prohibi-
tion which says: ‘‘to provide against any discrimination”.

The Polish interpretation would result in granting national
and, in certain respects, also minority treatment. In the Court’s
opinion, however, the object of the prohibition is to prevent
any unfavourable treatment, and not to grant a special régime
of privileged treatment.

29

/

/
TREATMENT OF POLISH NATIONALS IN DANZIG 30

In short, the Court is of the opinion that the contents of Arti-
cle 104: 5 are of a purely negative character in that they are
confined to a prohibition of any discrimination ; it is for this
reason unable to read into them any standard of comparison.

%

It follows from the above considerations that the legal
effect of Article 104: 5 of the Treaty of Versailles was simply
to oblige the Principal Allied and Associated Powers to insert .
in the convention, the terms of which they undertook to
negotiate, provisions which would prevent in the Free City
any discrimination of the kind indicated above.

It has, however, been contended that, although Danzig
is not a signatory of the Treaty of Versailles, yet by its
acceptance, on November goth, 1920, of the above quoted
decision of the Principal Allied and Associated Powers of
October 27th, 1920, establishing the Free City, Article 104:
5 of the Treaty of. Versailles becomes binding on Danzig
and contains therefore rules of law which are. applicable as
between Poland and Danzig.

The Court has duly considered from this point of view
the terms of this decision and its acceptance by the Free
City. Having satisfied itself that these texts are in this respect
capable of different constructions, the Court simply observes
that no precise conclusion in either sense can be deduced
from them. . |

It is certain, on the other hand, that the Free City, having
accepted the convention which the Principal Allied and Asso-
ciated Powers had negotiated in pursuance of the terms of
Article 104 of the Treaty of Versailles, thereby in a sense
accepted that article. This acceptance, however, is merely
the recognition of the mandate contained in the article of
which the Convention is the application. The acceptance of
Article 104 by the Free City cannot bestow upon the provi-
sions of that article a meaning different from that which
they bear in the relations between signatories to the Treaty.
Moreover, the mandate is enforceable in respect of the Free
City not only as a mandate conferred on the Principal Allied

30
TREATMENT OF POLISH NATIONALS IN DANZIG 31

and Associated Powers, but also because it indicates the
objects to be attained by the Danzig-Polish Convention.
The question whether paragraph 5 of Article 104, by reason of its
reproduction with slight additions in the second part of Article 33,
paragraph 1, of the Convention of Paris, has become a rule
of Jaw binding on the Free City in relation to Poland, is an
entirely different matter. In regard to this the Court observes
that the contents of this provision have become binding on
the Free City not because it is a rule in the Treaty of Ver-
sailles, but because it is a clause of the Convention of Paris.

*

Before dealing with the exact interpretation of Article 33,
paragraph 1, of this Convention, the Court will consider the
precise relation of that article to Article 104: 5 of the Treaty of
Versailles. It should be observed in this connection that, in the
case concerning access to and anchorage in the port of Danzig of
Polish war vessels (Opinion of Dec. t1th 1937), the Court did not
express any opinion regarding the relations between Article 104
of the Treaty of Versailles and the Convention of Paris.

It has been suggested that the very wording of the ques-
tions submitted to the Court shows [that, in the opinion of
the Council, Article 104: 5 of the Treaty of Versailles and
Article 33 of the Convention of Paris have the same legal
value, in view of the expressions “solely by reference to
Article 104 (5) of.the Treaty of Versailles and Article 33,
paragraph 1, of the Convention of Paris’, and “the exact
interpretation of Article 104 (5) of the Treaty of Versailles
and of Article 33, paragraph 1, of the Convention of Paris”.
In the opinion of the Court, however, no conclusion as to
the legal value attributed by the Council to the two provi-
sions in question can be drawn from these expressions. The
dispute between Poland and Danzig before the High Commis-
sioner as to whether or not the Danzig Constitution has an
international character in relations between the two countries,
sufficiently explains why the question put to the Court either
contrasts these two treaty provisions with the Constitution or
asks the Court to interpret them both. The [questions cannot
therefore be considered as implying that these two stipula-
tions have an equal legal value.

31
TREATMENT OF POLISH NATIONALS IN DANZIG 32

As between Danzig and Poland, the Convention of Paris
is the instrument which is directly binding on Danzig; but
in case of doubt as to the meaning of its provisions, recourse
may be had to the Treaty of Versailles, not for the purpose
of discarding the terms of the Convention, but with a view
to elucidating their meaning. This view is consistent with
the report of M. Quifiones de Ledén, adopted by the Council
on July 7th, 1923.

A difference of opinion had arisen between the High Com-
missioner and the Polish authorities regarding the relation
between the Treaty of Versailles and the Convention of Paris.
In a letter to the Secretary-General of the League of Nations
dated June 4th, 1923, the High Commissioner expressed the
view that, as regards the rights of the two States forming
the subject of certain articles of the Treaty of Versailles, the
-Convention of Paris, and not the Treaty, was to be regarded
as decisive. In his reply dated July 4th, 1923, the Polish
representative argued that the Convention of November oth,
1920, was not to be regarded as the decisive text, but that
the meaning and terms of that Convention must be read in
close conjunction with the Treaty of Versailles. ‘The Treaty
constitutes the original legal basis; the Convention merely
embodies clauses ensuing therefrom.” The above-mentioned
report of July 7th, 1923, decides between these opposing views.
This report was officially communicated to the Governments
of Poland and Danzig and to the High Commissioner of the
League of Nations at Danzig. It is well to reproduce here
the relevant passage :

“Tn the first place the question must be determined as
to what is the exact relation between Article 104 of the
Peace Treaty of Versailles and the Treaty concluded at
Paris on November oth, 1920. I am of opinion that the
Treaty of November oth, 1926, constitutes an entirely valid
legal basis for the relations between Danzig and Poland,
but that in the event of doubt as to the interpretation of
any clause in the Treaty of November gth recourse may be
had, in order to dispel such doubt, to Article 104. of the
Treaty of Versailles in virtue of which the Treaty of |
November oth, 1920. was concluded. If I rightly understand

32
TREATMENT OF POLISH NATIONALS IN DANZIG ' 33

the position, the Polish representative appears to accept
this standpoint, as a result of the exchange of views which
took place at the meeting of the Council on the 4th instant.”

‘The conclusion of the Convention does not in any way
impair the legal value of Article 104 of the Treaty as an
authentic expression of the mandate conferred on the Principal
Allied and Associated Powers and of the objects of the
Convention ; from this point of view and to this extent, the
article is enforceable in respect of the Free City.

*

Having interpreted Article 104, paragraph 5, of the Treaty
of Versailles and established the relation between it and
Article 33 of the Convention of Paris, the Court will now
proceed to examine paragraph 1 of that article.

The paragraph reads as follows:

“The Free City of Danzig undertakes to apply to
racial, religious and linguistic minorities provisions similar
to those which are applied by Poland on Polish territory
in execution of Chapter I of the Treaty concluded at
Versailles on June 28th, 1919, between Poland and the
Principal Allied and Associated Powers, to provide, in
particular, against any discrimination, in legislation or in
the conduct of the administration, to the detriment
of nationals of Poland and other persons of Polish origin
Gr speech, in accordance with Article 104, paragraph 5, of
the Treaty of Versailles.”

This provision consists of two parts separated by a comma,
the second part beginning with the words: notamment à
pourvoir (English text: “‘to provide, in particular’). The
principal points on which the Polish Government and
the Government of the Free City hold divergent views are:
(x) the relation between the two parts of the paragraph,
and (2) the interpretation to be given to the second part.
This text not being absolutely clear, it may be useful, in
order to ascertain its precise meaning, to recall here somewhat
in detail the various drafts which existed prior to the
adoption of the text now in force. |

When the Conference of Ambassadors began the work of
drafting the Convention, it had before it, as has already
been mentioned, three preliminary drafts, one presented by
Danzig and two by Poland. The Danzig draft contained

33
TREATMENT OF POLISH NATIONALS IN DANZIG 34

detailed provisions relating to the rights of the nationals ot
the two contracting Parties. These provisions dealt with,
inter alia, the question of reciprocal national treatment in
regard to the acquisition of immovable property and the
exercise of commercial and industrial activities of all kinds.
In the first Polish draft, the chapters dealing with “public
rights” and ‘public education” contained detailed provisions
concerning the situation of the Polish minority and the
rights of Polish nationals at Danzig on the basis of reciprocal
national treatment. The second Polish draft contained provi-
sions for national treatment of Polish nationals based on
the principle of reciprocity.

The question of national treatment of Polish nationals, which
had been raised in both the Danzig and the Polish drafts,
doubtless received the consideration of the Conference of
Ambassadors when it prepared its draft of the Convention ;
but instead of granting to Polish nationals at Danzig national
treatment, whether with or without reciprocity, and whether
in certain respects or in all respects, the Conference of Ambas-
sadors dealt with the matter in Article 30 of its draft of
October 16th, 1920, the first paragraph of which is as follows :

‘Article 30.—The Free City of Danzig undertakes to apply
to racial, religious and linguistic minorities- provisions ident-
ical with those which are applied by Poland on Polish terri-
tory, in execution of Chapter I of the Treaty concluded at
- Versailles on June 28th, 1019, between Poland and the Prin-
cipal Allied and Associated Powers, with a view, in particular,
to ensure the application of the provisions laid down in
Article 104, paragraph 5, of the Treaty of Versailles with
Germany.” .

This article, which appeared without any change in the
revised text of the Conference of Ambassadors under date of
October zoth, corresponds to Article 33 of the Convention of
Paris.

It should be noticed that the treatment accorded by Arti-
cle 30 of the draft to Polish nationals and other persons of Polish
origin or speech is not national treatment, but the régime of
minority protection, and that the application of provisions

34
TREATMENT OF POLISH NATIONALS IN DANZIG 35

identical to those applied by Poland in Polish territory in
accordance with Chapter I of the Polish Minorities Treaty of
June 28th, 1919, constituted, in the opinion of the Conference
of Ambassadors, the fulfilment of the mandate contamed in
Article 104: 5 of the Treaty of Versailles. |

However that may be, Article 33 of the Convention of Paris
differs from Article 30 of the Conference draft in two respects,
namely: (1) the word ‘‘identical’” in the first part of the first
paragraph of the article is changed to “similar”, and (2) the
second part: “with a view, in particular, to ensure the appli-
cation of the provisions laid down in Article 104 (5) of the
Treaty of Versailles” is changed to: “to provide, in particu-
lar, against any discrimination, in legislation or in the conduct
of the administration, to the detriment of nationals of Poland
and other persons of Polish origin or speech, in accordance
with Article 104, paragraph 5, of the Treaty of Versailles”.
The substitution of the word “similar’’ for ‘‘identical’’ would
not seem to be of importance for the purposes of the present
Opinion. On the other hand, the change in the second part
of the paragraph has given rise to different interpretations. In
the text finally adopted, this second part reproduces the words
of Article 104: 5 of the Treaty of Versailles with the addition, |
in the body of the text, of the words: ‘‘in legislation or in the
conduct of the administration”; this addition does not, however,
materially affect the respective interpretations given by the two
Governments concerned.

Although the Court, in giving its interpretation of the clause
in question, is in no way bound by the views of the inter-
ested Governments, it will be well. to indicate here what these
views are. |

The Government of the Free City maintains in substance
that the second part of the paragraph should be read in the
light of the first part, on the ground imter alia that the intro-
duction of the second part by the word ‘‘notamment’’ logic-
ally renders the first part a principal clause, and the second
a subsidiary clause, so that what is said in the latter must
necessarily be implied and therefore included in the former.
In a word, the whole paragraph, according to the Danzig
interpretation, contains one undertaking only, the second part

5 | 35
TREATMENT OF POLISH NATIONALS IN DANZIG 36

merely confirming. the undertaking assumed by Danzig in the
first part. The Polish Government, on the other hand, con-
tends that in the first paragraph of the article, the first part
relates to the protection of minorities in general, whereas the
second relates to. the treatment of Polish nationals and other
persons of Polish origin or speech in particular, a treatment
which, according to the Polish interpretation, must be national
treatment, subject to the two exceptions already noticed.

As already stated above, the solution adopted by the Confer-
ence of Ambassadors in its draft of October 2oth, 1920, is.
the application to Polish nationals and other persons of Polish.
origin or speech of the general system of minority protection.
This draft is described as a ‘‘final text’’, and the intention of
the Conference of Ambassadors in regard thereto may be
clearly seen from its letter to the Danzig delegation under
date of October 28th, 1920:

“The Conference of Ambassadors never intended to call in
question the essential solutions embodied in the draft treaty
accompanying my letter to you of the z2oth instant. The
Conference thought and still thinks that a great deal would
be gained if, without questioning any of these solutions, both
Parties would agree upon any additions or modifications of
detail which would tend either to clarify the meaning of cer-
tain provisions or simplify their application, and would
eliminate any causes of hesitancy calculated to compromise
agreement between them. It is however to be clearly under-
stood that the text sent you on the 2oth instant will not be
modified in any way whatever except with the agreement of
the two Parties who are to sign the treaty 17

In this letter the Conference of Ambassadors declared in
unmistakable terms that any subsequent additions or modi-
fications introduced into the draft were to be confined to
matters of detail, without calling in question any of the solu-
tions already adopted. To interpret this text as implying
national treatment, as the Polish Government contends, would, '
in the opinion of the Court, constitute a fundamental change.

1 Translation by the Registry.
36
TREATMENT OF POLISH NATIONALS IN DANZIG 37

contrary to the expressed intentions of the Conference of
Ambassadors.

It is true that in the note of the Conference of Ambassa-
dors annexed to its letter of October 20th, 1920, to the Secre-
tary-General of the League of Nations, reference is made to
“certain guarantees regarding treatment (equality of treat-
ment)”, but the words “equality of treatment” do not suggest
any particular standard of comparison, so that no conclusion
can be drawn that they mean national treatment. The fact
should be emphasized that the note was referring to the
draft of the Convention, of the same date, made by the
Conference. In that draft, Article 30 indisputably provided
for the application of the system of minorities protection.
The inference, if any, which can be drawn from the use of
the expression “equality of treatment” is that it. means
equality of treatment within the régime of the protection
of minorities. The passages quoted above from Viscount Ishii’s
report of November 17th, 1920, afford further evidence to
the same effect.

It has been suggested that the letter of the Danzig delega-
tion to the Conference of Ambassadors, dated November 5th,
1920, and the latter’s reply dated November 6th, support
the Polish contention. The letter of the Danzig delegation
was occasioned by the opinion expressed by the Polish section
of the Constituent Assembly that Polish nationals in the
Free City would also, ipso facto, enjoy political rights. The
letter asked the Conference of Ambassadors to give an assu-
rance that the new text of Article 30 could not admit of
such an interpretation. The Conference replied that it had
no difficulty in giving the assurances desired in this respect.

It has been argued that, in asking for this assurance, the
Danzig delegation must have been assuming that national
treatment was accorded by the text in question to Polish
nationals and other persons of Polish origin or speech. In
the Court’s opinion, however, it is far more probable that
the intention of the Danzig delegation, in making the enquiry
in question, was to satisfy itself, by raising a specific aspect
of the problem, that the text did not mean treatment equal

37
TREATMENT OF POLISH NATIONALS IN DANZIG 38

to that of Danzig nationals. Be that as it may, no argu-
ment a contrario can be deduced from the exchange of letters
referred to.

The Polish Government contends that if Polish nationals
and other persons of Polish origin or speech be not accorded
national treatment under the second part of. the text in
question, they would have very few guarantees, and that
such a situation would scarcely be consonant with the policy
which led to the creation of the Free City.

In order to appreciate this objection, it is well to consider
the sense in which the term “minorities” is used in the first
part of Article 33, paragraph 1, of the Convention of Paris,
and with that object to examine the provisions of Chapter I
of the Polish Minorities Treaty of June 28th, rorg, particu-
larly Articles 2, 7, 8, g and 12 of that Treaty.

‘By Article 2, Poland undertakes to assure full and complete

protection of life and liberty to all inhabitants of Poland
without distinction of birth, nationality, language, race or
religion, and all inhabitants shall be entitled to the free
exercise of any creed, religion or belief, whose practices are
not inconsistent with public order or public morals.

Article 7 provides that all Polish nationals shall be equal
before the law and shall enjoy the same civil and political
rights.

Article 8 provides that Polish nationals who belong ‘to
racial, religious or linguistic minorities shall enjoy the same
treatment in law and in fact as the other Polish nationals,
and that they shall also have the right, among others, to
use their own language.

Under Article 9 Poland is bound to provide in the public
educational system, subject to certain conditions, adequate
facilities for ensuring to the children of Polish nationals of
other than Polish speech. primary instruction through the
medium of their own language.
TREATMENT OF POLISH NATIONALS IN DANZIG 39

Finally, Article 12 deals with the guarantee accorded by the :
League of Nations to the provisions of the Minorities Treaty :
this guarantee is given “in so far as they” (the provisions of
Articles r to rx) “affect persons belonging to racial, religious
or linguistic minorities’.

It will be seen that so far as the treatment of minorities
is concerned, a distinction is drawn in the Treaty between
minorities in the broad sense and minorities in the narrow
sense. Article 2 refers to ‘‘all inhabitants’, which also included
‘minorities consisting of non-citizens of the State. This inter-
pretation is in conformity with the practice of the Council and
with the Court’s Advisory Opinion No. 7 on the question
concerning the acquisition of Polish nationality. The members
of minorities who are not citizens of the State enjoy protec-
tion—guaranteed by the League of Nations—of life and liberty
and the free exercise of their religion, while minorities in the
narrow sense, that is, minorities the members of which are
citizens of the State, enjoy—under the same guarantee—amongst
other rights, equality of rights in civil and political matters,
and in-matters relating to primary instruction.

The Court is of opinion that in the first part of Article 33,
paragraph 1, the term “miriorities’’ is employed in its wide
sense. This view was, moreover, shared by the two Govern-
ments concerned when the Warsaw Agreement of October 24th,
1921, was being [drawn [up. Indeed, the formal reservation
of the Polish Government, contained in Article 229 of that
Agreement between Poland and Danzig, described the rights
referred to in the clause in question as ‘‘the minority rights
of Polish nationals in the Free City of Danzig’.

The Court is unable to attach decisive importance to the
opinion of the Polish Government according to which, because
Polish nationals and other non-Danzig persons of Polish origin
or speech in the Free City—like any other foreigners—only
enjoy, under the general system of minority protection, rights
in respect of life, liberty, and freedom of religion (which rights,
in the opinion of the Polish Government, are entirely inade-
quate), the second part of the first paragraph of Article 33
must necessarily imply national treatment of the above-men-
tioned persons. Whether the granting to these persons, de lege

39
TREATMENT OF POLISH NATIONALS IN DANZIG 40

ferenda, of more extensive guarantees than those contained in
Article 2 of the Polish Minorities Treaty might be considered,
is a question going beyond the terms of the question sub-
mitted to the Court. The duty of the Court is to interpret
the text as it stands, taking into consideration all the mate-
rials at the Court’s disposal. Moreover, it must be observed
that the distinction between citizens and non-citizens obtains
to a greater or less extent in almost all countries, and is the
standard adopted in all the Minorities treaties; it may not be
entirely satisfactory from the point of view of a certain group
or groups of foreigners, but it cannot be said to be unrea-
sonable or unjust. It is to be observed in this connection
that the Polish Minorities Treaty, like all other Minorities
treaties, lays down the minimum guarantees which the State
concerned is required to accord. The State is at liberty, either
by means of domestic legislation or under a convention, to
grant to minorities rights over and above those assured by the
Minorities Treaty.

For the reasons set forth above, the Court has reached the
conclusion that the Polish argument, according to which the
second part of the first paragraph of Article 33 of the Con-
vention of Paris provides national treatment for Polish nationals
and other non-Danzig persons of Polish origin or speech in
the Free City is not justified. Nor, on the other hand, can the
Court accept the argument of the Danzig Government that the
second part of the first paragraph of Article 33 adds nothing
to the obligation arising from the first part of that paragraph,
and does no more than confirm that obligation.

In the opinion of the Court, paragraph I of Article 33 of
the Convention of Paris should be considered as containing two
undertakings. According to the first part of the paragraph,
the Free City undertakes to apply to minorities in her territory
provisions similar to those applied by Poland in Polish terri-
tory in accordance with Chapter I of the Polish Minorities
Treaty of June 28th, 1919; and the second part contains the
undertaking to provide against any discrimination to the detri-
ment of Polish nationals and other persons of Polish origin

40
TREATMENT OF POLISH NATIONALS IN DANZIG 4

or speech on account of their Polish nationality, origin or
speech, in accordance with. Article 104:5 of the Treaty of
Versailles.

The second undertaking assumed by Danzig, resulting from -
the incorporation of Article 104: 5 of the Treaty of Versailles
in the text of the Convention of Paris, may therefore be

considered as a further guarantee that the Free City, whether __

applying provisions similar to those applied in Poland by tHe
Polish Government to the minorities within its territory or
granting more extensive or additional rights to these minor-
ities or to foreigners not belonging to a minority, will allow
of no differential treatment of Polish nationals and other
persons of Polish origin or speech to their detriment on
account of their Polish nationality, origin, or speech.

It has been suggested that if only discrimination on account
of Polish nationality, origin or speech is prohibited, it would
be possible for Danzig to exclude all Poles from its territory,
provided that the exclusion applied equaily to other foreigners,
a consequence which would be contrary to the principle of
Poland’s free and secure access to the sea through the port of
Danzig. The Court, without expressing any opinion on the
question whether a State can exclude all foreigners from its:
territory, observes that it is unable to contemplate any such:
possibility with regard to the admission of Poles to the Free:
City’s territory. The free and secure access to the sea which
is guaranteed to Poland by several articles of the Convention
of Paris, is irreconcilable with a system under which the terri-
tory of Danzig would be closed to Poles. Article 33 regulates
the legal situation not only of Polish nationals but also of
other persons of Polish origin or speech who are already,
whether temporarily or permanently, within the territory of
the Free City. The admission of foreigners to the territory
of a State is a question which is not necessarily connected
with the legal status of persons within its territory.

4ï
TREATMENT OF POLISH NATIONALS IN DANZIG 42

The Court, having answered question (1) in the negative,
is not called upon to give an exact interpretation of the
“relevant provisions of the Constitution of the Free City’.

FoR THESE REASONS,
The Court,

by nine votes to four,
is of opinion:

(x) that the question of the treatment of Polish nation-
als and other persons of Polish origin or speech in the
territory of the Free City of Danzig must, as between
Poland and the Free City, be decided solely by reference
to Article 104: 5 of the Treaty of Versailles and Article 33,
paragraph 1, of the Convention of Paris (as also, if neces-
sary, by reference to other treaty provisions in force or
rules of ordinary international law) and not by reference
to the Constitution of the Free City, with the result that
the Polish Government cannot submit to the organs of
the League of Nations disputes concerning the application to
the aforesaid persons of the Danzig Constitution and other
laws of Danzig by the method provided for in Article 103
of the Treaty of Versailles and Article 39 of the Conven-
tion of Paris except in the case of disputes concerning |
the violation, as a result of such application, of an inter- |
national obligation of Danzig towards Poland arising either
from treaty provisions in force between them or from
ordinary international law ;

(2) a: that Article 104: 5 of the Treaty of Versailles
contains a mandate, entrusted to the Principal Allied
and Associated Powers and accepted by them, to ensure
that the treaty to be concluded between Poland and
Danzig (Convention of Paris) should include provisions
binding on the Free City and safeguarding Polish nation-
als and other persons (including Danzig nationals) of

42
TREATMENT OF POLISH NATIONALS IN DANZIG 43

Polish origin or speech in the territory of Danzig against
any differential treatment to their detriment on the
ground of their Polish allegiance, origin or speech; that
this provision, which is purely negative in character, does
not establish any standard of comparison for the applica-
tion of the prohibition of discrimination ;

b: that as between Poland and Danzig, the question
of the treatment of Polish nationals and other persons
of Polish origin or speech in the territory of the Free
City is governed by the provisions of Article 33,
paragraph x, of the Convention of Paris, but that in
case of doubt as to the interpretation of that article,
recourse may be had, in order to dissipate such doubt,
to Article 104: 5 of the Treaty of Versailles ;

c: that, under Article 33, paragraph x, of the Conven-
tion of Paris, Danzig has undertaken

to apply to Polish nationals and other persons of
Polish origin or speech in the territory of the Free
City the minority system contemplated by Chapter I of
the Treaty of June 28th, 1919, between the Principal
Allied and Associated Powers and Poland, as that system
is actually applied in Poland by the Polish Government,

and to avoid in her legislation or in the conduct
of her administration any differential treatment to the
detriment of the aforesaid Polish nationals and other
persons, on account of their Polish allegiance, origin
or speech, either in the application to the minorities in |,
her territory of provisions similar to those applied to
minorities in Poland by the Polish Government, or in
the grant of more extensive rights to these minorities
or to foreigners not belonging to minorities ;

a: that the question whether, in a given case, an act
or failure to act constitutes a breach of the provisions
of Article 33, paragraph 1, of the Convention of Paris is
essentially one of fact to be decided on the merits of
each case.

43
TREATMENT OF POLISH NATIONALS IN DANZIG 44

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this fourth day of
February, one thousand nine hundred and thirty-two, in two ~
copies, one of which is to be placed in the archives of the
Court, and the other to be forwarded to the Council of
the League of Nations.

(Signed) M. ADATCI,

President.

(Signed) À. HAMMARSKJÜLD,

Registrar.

M. Guerrero, Vice-President, Count Rostworowski, MM. Froma-
geot and Urrutia, Judges, declaring that they are unable to
concur in the Opinion given by the Court and availing
themselves of the right conferred on them by Article 7x of
the Rules of Court, have delivered the dissenting opinion
which follows hereafter.

Sir Cecil Hurst, whilst concurring in the operative portion
of the present Opinion, declares that he is unable to agree in
regard to the grounds on which it is based, and accordingly
has delivered the separate opinion which follows hereafter.

Baron Rolin-Jaequemyns, Judge, whilst in agreement with
the replies given by the Court to the questions submitted
to it by the Council, declares that he is unable entirely to
accept some of the arguments on which these replies are
based; in this connection he refers to the reservations set out
in the note of Sir Cecil Hurst reproduced below, in which
he concurs.

(Initialled) M. A.
(Initialled) A. H

44