SERIE A — Ne 7

RECUEIL DES ARRETS

PUBLICATIONS DE LA
COUR PERMANENTE DE JUSTICE INTERNATIONALE
N° 7. Affaire relative à certains inté-
réts allemands en Haute-Silésie
polonaise (Fond)

COLLECTION OF JUDGMENTS

PUBLICATIONS OF THE
PERMANENT COURT OF INTERNATIONAL JUSTICE
No 7. Case concerning certain
German interests in Polish
Upper Silesia (The Merits)

LEYDEN
A.W. SIJTHOFF’S
PUBLISHING COMPANY
1926

 LEYDE
SOCIÉTÉ D’EDITIONS
A.W. SIJPHOFF
1926

PERMANENT COURT OF INTERNATIONAL JUSTICE.

TENTH (EXTRAORDINARY) SESSION 1926.

May 25¢
Files E. c. VI
Before: Docket X

MM. Huser, President,
LoDER, Former President,
‘Lord FiINLAY,
MM. NYHOLM,
ALTAMIRA, Judges,
ANZILOTTI,
YOVANOVITCH,
BEICHMANN,
. NEGULESCO,

Count RosTWworRowskI, . |
M. RaBeEt, National Judges.

Deputy-Judges,

JUDGMENT No. 9.

CASE CONCERNING
CERTAIN GERMAN INTERESTS.
IN POLISH UPPER SILESIA
(THE MERITS).

The Government of Germany, represented by Dr. Erich Kauf-
mann, Professor at Bonn,

Applicant,
versus

The Government of the Polish Republic, represented by
M. Mrozowski, President of the Supreme Court of Warsaw, and
M. Sobolewski, Assistant Delegate to the Reparation Commission,

- Respondent.
At Ae Tee

JUDGMENT No. 7. — POLISH UPPER SILESIA 5

THE CouRrT,

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

delivers the following judgment :

: The Government of the German Reich, by Applications institut-
ing proceedings filed with the Registry of the Court on May 15th
and August 25th, 1925, in conformity with Article 40 of the Statute
and Article 35 of the Rules of Court, has submitted to the Perm-
anent Court of International Justice suits concerning certain German
interests in Polish Upper Silesia. These interests concerned in
the first place the application of Articles 2 and 5 of the Polish law
of July r4th, 1920, the deletion from the land registers of the

-name of the Oberschlesische Stickstoffwerke Company (hereafter .
called the “Oberschlesische”) as owner of certain landed property
at Chorz6w, and the entry, in its place, of the Polish Treasury ;
the taking over by a delegate of the Polish Government of control
of the working of the nitrate factory at Chorzéw ; also the taking
possession by him of the movable property and patents,
licences, etc., of the Bayerische Stickstoffwerke Company (here-
after called the “ Bayerische”), which had previously worked
the factory. 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 expro-
priate those properties. The Application of May 15th related
to ten large estates ; to these two others were added by the Appli-
cation of August 25th.

On receipt of notice of the first Application, the Government
of the Polish Republic took certain preliminary objections of proce-
dure and in particular an objection to the Court’s jurisdiction.

The Court on August 25th, 1925, gave judgment on the preli-
minary objections made by Poland. The operative part of this judg- _
ment runs as follows :

“The Court, having heard both Parties,

“I. — (x) In affaire I referred to in the plea filed by the
Government of the Polish Republic :
JUDGMENT No. 7. — POLISH UPPER SILESIA 6

dismisses this plea ;
declares the Application to be admissible ;
and reserves it for judgment on the merits.

“(2) In the affaires II referred to in the plea filed by the
Government of the Polish Republic :

dismisses this plea ;
declares the Application to be admissible ;
and reserves it for judgment on the merits.

“TI. — Instructs the President to fix, in accordance with
Article 33 of the Rules of Court, the times for the deposit of
further documents of the written proceedings.”

In the additional Application filed on the same day on behalf
of the German Government, the latter, amongst other things,
requested the Court to join that Application to the Application
filed on May 15th, 1925. By a decision dated February 5th, 1926
(Annex I), the Court complied with this request by joining, for the
purposes of the proceedings on the merits, the causes of action set
out in the Request of August 25th, 1925, to those—also relating
to the notice given by the Polish Government of an intention to
expropriate certain large rural estates—mentioned in the Applica-
tion of May 15th, 1925.

‘The submissions made in the two Applications, the joinder of
which was thus decided, were as follows:

“May the Court be pleased :
To give judgment....:

I. x. (a) That Article 2 of the Polish law of July 14th, 1920,
constitutes a measure of liquidation as concerns property,
rights and interests acquired after November r1th, 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 ;
JUDGMENT No. 7. — POLISH UPPER SILESIA 7

2. (a) That the attitude of the Polish Government in regard to
the Oberschlesische Stickstoffwerke and Bayerische Stick-
stoffwerke Companies was not in conformity with Article 6
and the: following articles of the Geneva Convention ;

(6) should the decision in regard to point (a) bein the affirm-
ative, the Court is requested to state what attitude should
have been adopted by the Polish Government 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 Giesche’s Erben
Company; to Christian Kraft, Fürst zu Hohenlohe-
Oehringen ; to the Vereinigte Kônigs- und Laurahütte
Company ; to the Baroness Maria Anna von Goldschmidt-
Rothschild (née von Friedländer-Fuld) ; to Karl Maximi-
lian, Fürst von Lichnowsky ; to the City of Ratibor ;
to Frau Gabriele von Ruffer (née Gräfin Henckel von Don-
nersmarck) ; 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 Conven-
tion.”

IL. “That the liquidation of the rural estates belonging to the
Duke of Ratibor and Count Saurma-Jeltsch would not be
in conformity with the provisions of Article 6 and the
following articles of the Geneva Convention.”

These submissions have undergone amendments, either in the
course of the written or oral proceedings, which will be indicated
hereinafter.

In accordance with the Judgment of August 25th, 1925, No. IT,
the President fixed the times for the filing of the documents of the
written proceedings in regard to the suits in question as follows:

For the Case, by the Applicant : Wednesday, September 16th,
1925;

For the Counter-Case, by the Respondent : Wednesday, October
28th, 1925 ;

For the Reply, by the Applicant : Wednesday, November 25tli,
1925 ;
JUDGMENT No. 7. — POLISH UPPER SILESIA 8

For the Rejoinder, by the Respondent : Wednesday, Decem-
ber 23rd, 1925.

The Case of the German Government was filed on the date fixed.
The Polish Government having, before the expiration of the time
allowed for filing of its Counter-Case, requested additional time,
the President granted this request and decided, in virtue of the
powers conferred upon him by Article 33 of the Rules of Court,
to postpone by one month the date fixed for the filing of the next
document ; the times thus expired as follows :

For the filing of Counter-Cases by the Respondent : Saturday,
November 28th, 1925 ;

For the filing of Replies by the Applicant: Saturday,
December 26th, 1925 ;

For the filing of Rejoinders by the Respondent: Saturday,
January 23rd, 1926.

The documents of the written proceedings were duly filed with
the Registry within the times finally fixed and were communicated
to those concerned as provided in Article 43 of the Statute.

By a decision taken in virtue of Article 23 of the Statute and in
accordance with what had been agreed upon during the proceedings
in regard to the preliminary objections made by Poland, as also with
a Resolution adopted by the Court during its ninth session, the
‘President convoked an extraordinary session of the Court for
February 2nd, 1926 ; the Parties were duly notified.

In the course of hearings held from February 5th-11th and
from February 16th-26th, the Court has heard the oral pleadings,
replies and rejoinders submitted by the above-mentioned Agents
of the Parties.

+
* *

The amendments made to the original submissions. of the
applicant Party may be summarized as follows:

I. For submission No. 1 of the Application of May 15th, 1925,
the Case has substituted the following submission : |

“May the Court be pleased

“To give judgment to the effect :

“That the application both of Article 2 and of Article 5 of the
law of July 14th, 1920, in Polish Upper Silesia, decreed by the law
JUDGMENT No. 7. — POLISH UPPER SILESIA 9

of June 16th, 1922, constitutes a measure of liquidation within the
meaning of Article 6 and the following articles of the Convention
of Geneva in the sense that, in so far as the above-mentioned
articles of the Convention of Geneva do authorize liquidation, that
application must be accompanied by the consequences attached to
it by the said Convention, in particular the entry into operation
of Articles 92 and 297 of the Treaty of Versailles prescribed by the
said Convention, and that, in so far as those articles do not authorize
liquidation, that application is illicit.”

The respondent Party has made no objection to this substitution ;
on the contrary, it has, in the Counter-Case, accepted it as “not
producing any change in the scope and essential object of the
original submission’.

IT. As regards submission No. 3 of the Request of May 15th,
1925, the applicant Party in its Reply has, ‘“‘subsidiarily’’, couched
it in the following form :

“May the Court be pleased
“To give judgment

“to the effect that the notices of an intention to liquidate the
tural estates belonging to.... are not in conformity with the
provisions of Article 6 and the following articles of the Geneva
Convention.”

The respondent Party maintained in his Rejoinder that the adop-
tion of the new formula implied the withdrawal of the original
claim and the substitution for it of a new one which was essentially
different both as regards its contents and its legal basis. Since,
in his opinion, such an amendment of the submissions was inadmis-
sible at that stage of the procedure, he asked the Court to decide
that submission No. 3 of the Application had been withdrawn by
the German Government. In his statement of February 5th, the
Agent of the latter Government observed that, having regard to the
close connection existing between expropriation and notice of
an intention to expropriate, submission No. 3 of the Application,
as originally drafted, and the subsidiary form expressed the same
idea, and that the subsidiary form amounted merely to a slight
JUDGMENT No. 7. — POLISH UPPER SILESIA 19

modification in the mode of expression. He also added that the
new wording had been expressly submitted as a subsidiary form
only, and that, if in the Court’s opinion the subsidiary submission
constituted an essential amendment of the Application, which in
his view would not be correct, the original wording had been neither
replaced nor withdrawn.

The Agent of the Polish Government, in his reply on February 8th,
1926, after admitting that the Court had overruled the contention
submitted by his Government in the proceedings upon the plea to
the jurisdiction and had ruled that the notices possessed a definitive
character, stated that, in order to simplify the argument, he
left aside all these questions of form, withdrew the submission set
out in the Rejoinder and agreed to argue the matter on the basis
of the so-called subsidiary submission, that is to say, the submission
formulated in the Reply.

Ill. The German Government, during the oral proceedings,
has withdrawn its application in so far as certain estates mentioned
in submission No, 3 are concerned.

(1) As regards the estate of Frau Hedwig Voigt, the application
was withdrawn by a statement made by the Agent of the
German Government at the hearing of July 18th, 1925, after
information had been supplied by the Polish Agent to the effect
that the notification concerning this estate had been withdrawn.
This statement was duly placed on record by the Court.

(2) Regarding the estate of Frau Gabriele von Ruffer, the applica-
tion was withdrawn by a similar statement made at the hearing
of February 5th, 1926; the Agent of the German Government,
in a further statement made at the hearing of February 8th, 1926,
attached certain reservations to this withdrawal, which reservations
were placed on record, but which do not otherwise affect the
case now before the Court.

(3) Regarding the estates of the Georg Giesche’s Erben Company,
the application was in part withdrawn by a statement made by the
Agent of the German Government at the hearing of February 8th,
1926, in so far as concerns the Mala Dabrowka estate and the
properties situated in the commune of Katowice. This statement
was duly recorded. When subsequently the Agents of the Polish
Government stated that the circumstances which had led to this
JUDGMENT No. 7. — POLISH UPPER SILESIA II

statement—that is to say, the withdrawal by the authority
competent to deal with questions of liquidation of the notice of
an intention to expropriate—in reality related exclusively to the
Mala Dabrowka estate and not to the properties at Katowice, the
Agent of the German Government confined himself to noting this
statement. The Court, being of opinion that the position resulting
from these various statements and declarations was insufficiently
clear, decided to ask the Parties for the necessary explanations.
The Agent of the German Government, in his reply, requested the
Court “only to regard the Application as withdrawn in so far as the
Mata Dabrowka estate was concerned” and to give judgment in
regard to the properties at Katowice. On the other hand, the
reply of the Polish Government to the corresponding request
for information, shows that, by a letter dated March 22nd, 1926,
the Central Liquidation Office at Warsaw informed the Giesche
Company that the notice of intention to expropriate the estates
belonging to that Company did not affect the property situated
in the town of Katowice. Moreover, the Polish Government,
both in its documents of procedure and in the statements made
on its behalf in Court, has manifested its intention not to expropriate
the property in question.

The Court duly records that the Application remains withdrawn
only in so far. as concerns the Mala Dabrowka estate.

As regards the property of Baroness von Goldschmidt-Rothschild,
the Agent of the Polish Government stated at the hearing of
February 8th, 1926, that it would not be liquidated, and produced
the number of the Monitor Polski of January 11th, 1926, containing
a rectification of the decision to give notice in respect of the Baro-
ness’s property. At the hearing of February roth, 1926, the Agent
of the German Government took note of these facts and stated that
he was prepared to withdraw the application when the Polish
Government had officially informed the Baroness von Goldschmidt-
Rothschild that her lands were entirely exempted from expropria-
tion. The Polish Government refused to comply with this request.

As regards the landed properties situated at Katowice and attri-
buted to the Vereinigte Kénigs- und Laurahiitte Company, the Agent
of the German Government confined himself to noting a statement
made by the Agents of the Polish Government to the effect that the
notice of an intention to expropriate these properties had been
withdrawn.
JUDGMENT No. 7. — POLISH UPPER SILESIA 12

Having regard to the foregoing, the submissions made by the
applicant Party may finally be.set out as follows :

“To give judgment to the following effect :

(x) That the application both of Article 2 and of Article 5 of the
law of July 14th, 1920, in Polish Upper Silesia, decreed by the
law of June 16th, 1922, constitutes a measure of liquidation within
the meaning of Article 6 and the following articles of the Convention
of Geneva in the sense that, in so far as the above-mentioned articles
of the Convention of Geneva authorize liquidation, that applica-
tion must be accompanied by the consequences attached to it by
the said Convention, in particular the entry into operation of
Articles 92 and 297 of the Treaty of Versailles prescribed by the said
Convention, and that, in so far as those articles do not authorize
liquidation, that application is illicit.

(2) (a) That the attitude of the Polish Government in regard to the
Oberschlesische Stickstoffwerke and Bayerische Stickstoff-
werke was not in conformity with Article 6 and the
following articles of the Geneva Convention ;

(6) Should the decision in regard to point (a) be in the affirm-
ative, the Court is requested to state what attitude should
have been adopted by the Polish Government in regard to
the Companies in question in order to conform with the
above-mentioned provisions.

(3) That the notices of an intention to liquidate the rural estates :
belonging to Count Nikolaus Ballestrem ; to the Georg Giesche’s
Erben Company, except the estate of Mala Dabrowka ; to Christian
Kraft, Fürst zu Hohenlohe-Oehringen; to the Vereinigte
Kônigs- und Laurahütte Company; to Baroness Maria Anna
von Goldschmidt-Rothschild ; to Karl Maximilian, Fürst von
Lichnowsky ; to the City of Ratibor ; to the Godulla Company ;
to the Duke of Ratibor and to Count Saurma-Jeltsch, are not in
conformity with the provisions of Article | 6 and the following
articles of the Geneva Convention.”

To the submissions of the Applicant, thus amended, the Respond-
ent opposes the following submissions :
JUDGMENT No. 7. — POLISH UPPER SILESIA 13
“May the Court be pleased :

(x) To non-suit the Applicant as regards submission No. 1 of the
Request as formulated in his Case ;

(2) to give judgment to the effect that there is no ground for a
decision as to the conformity or non-conformity with the provi-
sions of Article 6 and the following articles of the Geneva Con-
vention of the attitude of the Polish Government in regard
to the Oberschlesische Stickstoffwerke and Bayerische Stick-
stoffwerke Companies, seeing that no measures of liquidation
have been taken by that Government ;

(3) to non-suit the Applicant as regards submission No. 3 of
the Request and the submission of his second Application.”

The representative before the Court of the respondent Party,
in addition to the declarations above mentioned regarding the inten-
tion of his Government not to expropriate certain parts of the estates
in respect of which notice had been given, has made other similar
declarations which will be dealt with later ; the Court can be in no
doubt as to the binding character of all these declarations.

+
+ *

In support of their respective submissions, the Parties have filed

with the Court numerous documents, either as annexes to the docu-
ments of the written proceedings, or in the course of the oral proceed-
‘ ings, or finally, in consequence of requests made or questions
put by the Court (Annex ITI). —
’ The Court also has before it additional information which, in
pursuance of an Order made by the Court on March 22nd, 1926
(Annex II), was furnished by the Parties at the hearings of April
13th, 14th, 15th and 16th, 1926, by means of the examinations of
expert witnesses, in regard to the Ballestrem and Giesche (Mokre
estate) suits. .
JUDGMENT No. 7. —— POLISH UPPER SILESIA I4

THE FACTS.

So-called case of the factory at Chorzéw.

The history of this case up to the time when it was brought before
the Court has been briefly indicated in Judgment No. 6 ; the Court
refers to that Judgment.

So-called cases of the large rural estates.

The history of the cases has also been set out in Judgment No. 6,
to which, again, the Court refers.

It will, in order to avoid repetition, be more convenient to men-
tion pertinent facts relating to individual suits in connection with
the discussion of these facts from a legal standpoint.

THE LAW.

I.
So-called case of the Factory at Chorz0a.

I.

Before approaching the examination of the questions submitted
to it in regard to this case, the Court thinks it well to draw attention
to the following :

The Application sets out in two chapters the facts and allegations
upon which the Applicant bases his submissions ; the first chapter
relates to submissions 1 and 2, whilst the second relates to
submission 3.

When considering the plea to the jurisdiction submitted by the
Polish Government, the Court noted that that Government had,
in the submissions made in this plea, followed the division into two
chapters adopted in the Application and that the first submission
made in regard to “Affaire I’, the so-called case of the factory
at Chorzéw, questioned the Court’s jurisdiction as regards both
submission No. : and submission No. 2 of the Appiication. Having
noted this, the Court considered separately the Polish submissions
JUDGMENT No. 7. — POLISH UPPER SILESIA 15

relating to ‘Affaire I’’ concerning the factory at Chorzéw and those
relating to the large rural estates. This course was especially
indicated by reason of the fact that the Court at that-time felt com-
pelled to make certain reservations as to how far it could deal with
the questions contemplated by the first German submission.

Tn this way the present proceedings have been described as relat-
ing to two cases, the first of which relates to the factory at Chorzéw.
In reality, however, only the second submission of the Application
relates to this case, whilst the first submission refers generally to
certain relations between the Polish law of July 14th, 1920, and the
Geneva Convention.

The reservations which the Court made in Judgment No. 6, with
regard to submission No. r of the Application, concerned this sub-
mission considered as a principal submission, independent of sub-
mission No. 2; they related to the fact that the submission in
question, “in the form in which it was drafted’’, seemed to deal
exclusively with the Polish law of July 14th, 1920, and the relation
between this law and Articles 92 and 297 of the Treaty of Versailles,
and that it could not be regarded as in terms relating to a differ-
ence of opinion respecting the construction and application of
Articles 6 to 22 of the Geneva Convention.

The new version of submission No. 1—accepted by the Respond-
ent—on the other hand directly contemplates the relation between
Articles 2 and 5 of the Polish law of July x4th, 1920, and Articles
6 to 22 of the Geneva Convention. It is hardly open to doubt that
by this amendment the German Government intended to preserve
the character of submission No. 1 as a principal and independent
submission, though at the same time it might also operate as a
question preliminary to submission No. 2. The Agent of the Applic-
ant has on several occasions explained in this way the relation
between the two submissions, laying especial stress on their independ-
ence. It appears that this independence is to be understood in the
following sense : Submission No. r may be regarded as preliminary
to submission No. 2 in so far as the Polish Government, in taking
over the Chorzéw factory, invoked the law of July 14th, 1920;
nevertheless, the application of that law in Upper Silesia was in
itself not in conformity with the provisions of Articles 6 to 22 of
the Geneva Convention (submission No. 1) and the attitude of the
Polish Government in regard to the Oberschlesische Stickstoffwerke
JUDGMENT No. 7. — POLISH UPPER SILESIA 16

and Bayerische Stickstoffwerke Companies was in itself not in
conformity with the above-mentioned articles (submission No. 2).

The Respondent, for his part, also seems to regard submission
No. I as a principal and independent submission, for he disputes
the Court’s power to deal with it, whilst admitting that the question
to which it refers might enter into consideration as a question pre-
liminary to submission No. 2.

For these reasons, the Court will consider separately submissions
rand 2.

It having been expressly stated in Judgment No. 6 that “a declar-
ation by the Court that it has jurisdiction to deal with affaive 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. 1 of the German Application in the proceedings on the merits”’,
it is now necessary to consider the reasons for which the Respondent
disputes the Court’s power to give judgment upon this submission.

These reasons appear to be as follows: (1) submission No. 1.
cannot be regarded as relating to a difference of opinion respecting
the construction and application of Articles 6 to 22 of the Geneva
Convention ; (2) the examination by the Court of the question
whether the Polish law of July 14th, 1920, is in conformity with
the provisions of the Convention is contrary to paragraph 2 of
Article 2 of the Convention ; (3) lastly, the abstract character of
the decision asked for is hardly compatible with Article 59 of the
Court’s Statute.

(1) As regards the first of these objections, it will suffice to observe
that, Poland having thought herself entitled to introduce the law
of July 14th, 1920, into Upper Silesia and, on the other hand, the
German Government having contended that this law deprives
German nationals or companies controlled by them of their prop-
erty, rigbts and interests in a manner contrary to Head III
of the Geneva Convention, Part I, this certainly constitutes a
difference of opinion as to the meaning and scope of Articles 6
to 22.
JUDGMENT No. 7. — POLISH UPPER SILESIA 17
(2) Article 2, paragraph 2, of the Convention runs as follows :

“Except as provided in paragraph 1, the question whether
the provisions enacted by Poland are in conformity with the
conditions of Article 1, may not be subjected to examination

LEE]

by an international tribunal, even in the case of ‘evocation’.

In order to understand this clause, it should be borne in mind that
Article x begins by laying down in its first paragraph that the law
in force in Upper Silesia is to be maintained; subject to consequen- .
ces arising out of the transfer of sovereignty and modifications
thereby involved. Paragraph 2, however, allows Poland to replace
certain provisions of substantive law by new regulations applicable
to the whole of her territory and also permits certain other modifi-
cations of existing legislation. It adds that, in so far as land and
labour legislation are concerned, the new provisions must, as regards
their contents, be suitable to be substituted for the provisions
in force. It was only natural that provision should be made for
the possibility of dispute as to whether certain provisions were or
were not suitable to be substituted for the provisions in force:
this is done by paragraph 1 of Article 2, which regulates the proce-
dure for the settlement of such disputes. Then comes paragraph 2.
of the same article, which has been quoted above.

In the Court’s opinion, it is clear that this paragraph excludes
from examination by an international tribunal, except as otherwise
provided in Article 2, paragraph I, only the question whether the
provisions enacted by Poland are in conformity with the stipula-
tions of Article 1. The question whether a law is in conformity
with other clauses of the Convention is not covered by the paragraph
under consideration.

The reservation, referred to above, in regard to consequences.
arising out of the transfer of sovereignty and modifications thereby
involved, cannot, in the Court’s opinion, relate to lawssuch as that
of July 14th, 1920, but rather to constitutional and public law
provisions the maintenance of which would have been incompatible
with the transfer of sovereignty. This reservation moreover does
not seem to be relied on by the Respondent.
JUDGMENT No. 7. — POLISH UPPER SILESIA 18

The Polish Government has cited in support of its contention,
paragraph 4 of Article 1, according to which :

‘ Clauses of Polish laws stipulating that these laws shall
come into force in Polish Upper Silesia as from the date of the
tranfer of sovereignty, shall be ineffective in so far as they
relate to provisions the coming into force of which would be
contrary to the stipulations of the present Convention, and
shall remain ineffective so long as they continue to relate to
such provisions.”

The law of July 14th, 1920, having been introduced into Upper
Silesia by the law of June r6th, 1922, the question whether the
latter law contains provisions contrary to the Geneva Convention
and therefore to paragraph 4 of Article x, would, according to
Poland’s contention, fall within the scope of Article 2, paragraph 2.

The Court cannot admit this view. It follows from what has
been said above that the case provided for in paragraph 2 of Arti-
cle 2 is entirely different-from that contemplated in paragraph 4 of
Article 1. Again, it seems hardly open to doubt that this para-
graph refers to laws dating from before the transfer of sovereignty
and that its intention is to prevent such previously enacted laws
from coming into force in the territory allotted to Poland. Para-
graph 4 therefore contains no provision applicable to the Polish law
of June 16th, 1922 ; if the latter law is contrary to the provisions of
Articles 6 to 22, it does not constitute an infringement of Article I.

(3) In the last place, the objection based on the abstract char-
acter of the question which forms the subject of submission No. r
is likewise ill-founded. Article 14 of the Covenant gives the Courc
power to “hear and determine any dispute of an international
character which the Parties thereto submit to it”. There are
numerous clauses giving the Court compulsory jurisdiction in
questions of the interpretation and application of a treaty, and
these clauses, amongst which is included Article 23 of the Geneva
Convention, appear also to cover interpretations unconnected with
concrete cases of application. Moreover, there is no lack of clauses
which refer solely to the interpretation of a treaty ; for example,
letter a of paragraph 2 of Article 36 of the Court’s Statute. There
seems to be no reason why States should not be able to ask the
Court to give an abstract interpretation of a treaty ; rather would
JUDGMENT No. 7. — POLISH UPPER SILESIA 19

it appear that this is one of the most important functions which it
can fulfil. It has, in fact, already had occasion to do so in Judg-
ment No. 3.

Article 59 of the Statute, which has been cited by Poland, does
not exclude purely declaratory judgments. The object of this
article is simply to prevent legal principles accepted by the Court
in a particular case from being binding upon other States or in
other disputes. It should also be noted that the possibility of a
judgment having a purely declaratory effect has been foreseen in
Article 63 of the Statute, as well as in Article 36 already mentioned.

It might be asked whether a difficulty does not arise from the fact
that the Court would have to deal with the Polish law of July 14th,
1920. This, however, does not appear to be the case. From the
standpoint of International Law and of the Court which is its organ,
municipal laws are merely facts which express the will and constitute
the activities of States, in the same manner as do legal decisions or
administrative measures. The Court is certainly not called upon
to interpret the Polish law as such ; but there is nothing to prevent
the Court’s giving judgment on the question whether or not, in
applying that law, Poland is acting in conformity with its obliga-
tions towards Germany under the Geneva Convention.

For the foregoing reasons the Court reserves submission No. 1
of the German Government for judgment on the merits.

*
* %

Before proceeding to consider this submission upon its merits,
the Court finds it necessary to define what, in its opinion, is its real
import.

In the form finally adopted, submission No. 1, which is based on a
particular understanding of the nature of the measures permitted
or prohibited under Articles 6 to 22 of the Geneva Convention,
appears to be naturally sub-divided into two hypotheses, the first
of which concerns measures called by the Applicant ‘authorized
liquidation”, whilst the second concerns so-called ‘‘unauthorized”’
liquidation. The two parts of the submission, regarded in this way,
contain, however, a common feature: namely, the alleged incom-
patibility of Articles 2 and 5 of the law of July 14th, 1920, with
the whole or a portion of the provisions of Articles 6 to 22 of the
Geneva Convention. For, according to his first hypothesis, the

3
JUDGMENT No. 7. —— POLISH UPPER SILESIA 20

Applicant submits that the mere application of the above-men-
tioned Articles 2 and 5 is incompatible with certain of the pro-
visions in question, even in cases where expropriation is in itself
allowed by these provisions ; whilst, according to the second hypo-
thesis, he submits that the articles and provisions in question are
wholly incompatible in cases where expropriation is altogether
prohibited.

In these circumstances, the Court holds that in undertaking the
examination of submission No. 1, it must in the first place be
ascertained whether, generally speaking, Articles 2 and 5 of the
law of July 14th, 1920, are or are not compatible with Articles 6 to
22 of the Geneva Convention ; for, in the Court’s opinion, were this
point to be decided in the negative, there would be no need for it
to consider separately the two hypotheses adopted in the submis-
sion and their soundness as a legal theory. For if the two groups
of provisions were recognized to be generally incompatible, the
distinction which the Applicant has desired to make between the
measures respectively referred to as measures of authorized and of
unauthorized liquidation ceases.to have any importance for the
purposes of the suit ; since, if Articles 2 and 5 of the law of 1920 are,
im themselves, incompatible with Articles 6 to 22 of the Geneva
Convention as a whole, it is of no consequence whether, in certain
circumstances, there may be special reasons rendering the pro-
visions of the law incompatible with certain of the provisions of the
Geneva Convention included in Articles 6 to 22.

In approaching the question whether the two groups of provisions
in question are or are not compatible with a view to giving judg-
ment on submission. No. 1, the Court must consider, on the one
hand, the régime established by Head III of the Geneva Con-
vention and, on the other hand, the scope and effect of the pro-
visions contained in Articles 2 and 5 of the Polish law of July 14th, ~
1920.

*
* *

The first part of the Geneva Convention, entitled “General
Provisions”, includes three headings, the first of which is intended
to secure for a certain time and under certain reservations, the
maintenance of the German law in force in the Polish portion of the
plebiscite area ; the second secures the protection of vested rights

and the third establishes Poland’s right to expropriate in Polish
JUDGMENT No. 7. — POLISH UPPER SILESIA 27

Upper Silesia certain property of German nationals or of companies
controlled by them, under certain conditions.

It should first of all be observed that whereas Head II is
general in scope and confirms the obligation of Germany and Poland
in their respective portions of the Upper Silesian territory to
recognize and respect rights of every kind acquired before the
transfer of sovereignty, by private individuals, companies or
juristic persons, Head III only refers to Polish Upper Silesia and
establishes in favour of Poland a right of expropriation which
constitutes an exception to the general principle of respect for
vested rights.

Head III is entitled “Expropriation”. It includes a general
rule (Article 6) and three chapters, the first (Arts. 7-11) and second
(Arts. 12-16) of which respectively determine the conditions
under which Poland may expropriate large industrial undertakings
and large rural estates; whilst the third (Arts. 17-24) contains
provisions applying both to large industries and large rural estates.

Article 6 runs as follows :

“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 and rural estates. 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.”

It is only in the second part of this article that the word “liquid-
ated” occurs: as has already been stated, the section is. headed
“Expropriation”, and in all the articles the words “‘expropriate”
and “expropriation” are used. Having regard to the context,
it seems reasonable to suppose that the intention was, bearing in
mind the régime of liquidation instituted by the peace treaties of
1919, to convey the meaning that, subject to the provisions author-
izing expropriation, the treatment accorded to German private
property, rights and interests in Polish Upper Silesia is to be the
treatment recognized by the generally accepted principles of
international law. However that may be, it is certain that
expropriation is only lawful in the cases and under the conditions
provided for in Article 7 and the following articles ; apart from these
cases, or if these conditions are absent, expropriation is unlawful.
JUDGMENT No. 7. — POLISH UPPER SILESIA 22

Seeing that, as has been said, Head III is entitled “Expropri-
ation”, the Court will use that expression in the present Judg-
ment to denote measures referred to in the Head in question.

Further, there can be no doubt that the expropriation allowed
under Head III of the Convention is a derogation from the
rules generally applied in regard to the treatment of foreigners and
the principle of respect for vested rights. As this derogation itself
is strictly in the nature of an exception, it is permissible to conclude
that no further derogation is allowed. Any measure affecting the
property, rights and interests of German subjects covered by
Head III of the Convention, which is not justified on special
grounds taking precedence over the Convention, and which over- -
steps the limits set by the generally accepted principles of inter-
national law, is therefore incompatible with the régime established
under the Convention. The legal designation applied by one or
other of the interested Parties to the act in dispute is irrelevant
if the measure in fact affects German nationals in a manner
contrary to the principles enunciated above.

It follows from these same principles that the only measures
prohibited are those which generally accepted international law
does not sanction in respect of foreigners ; expropriation for reasons
of public utility, judicial liquidation and similar measures are not
affected by the Convention.

The foregoing relates to the substance of the measures forbidden
by the Convention. As regards the question of form, it may be
mentioned that the Convention provides for the observance of a
certain procedure ; it requires notification to be given of intention
to expropriate, and this notification—as the Court has observed in
dealing with the so-called case of the large rural estates and as will
be established later—must include only property subject to expro-
priation ; and this presupposes a preliminary enquiry as to the
existence of the necessary conditions. Such an enquiry, which ina
special case is provided for in Article 19, paragraph 1, is not without
importance for the attainment of the purpose of the Convention,
to guarantee, in the interests of all parties, the continuity of eco-
nomic life in Upper Silesia. If the principle of the preliminary
enquiry is accepted for the case of an expropriation in the form
intended by Head III, this seems to imply that, independent
of that form, there may be no dispossession of property unless it be
JUDGMENT No. 7. -— POLISH. UPPER SILESIA 23

established by preliminary enquiry that the Convention of Geneva
is not applicable.

The Polish law of July r4th, 1920, which must now be considered
in relation to the Convention, is entitled “law concerning the trans-
fer of the rights of the German Treasury and of members of reigning
German Houses to the Treasury of the State of Poland”. The
articles of importance from the standpoint of the question before
the Court are Articles 1, 2 (par. 1) and 5; these articles are as
follows :

Article x.

“In all cases where the Crown, the German Reich, the States
of Germany, institutions of the Reich or States of Germany,
the ex-Emperor of Germany or other members of reigning
houses, are or were entered after November 11th, 1918, in the
land registers of the former Prussian provinces—either as
owners or as possessors of real rights—the Polish Courts shall,
on the basis of the Treaty of Peace of Versailles of June 28th,
1919, in place of the above-mentioned persons or institutions,
automatically enter the name of the Polish Treasury (fisc
polonais) in these registers.”’

Article 2.

Paragraph, i.

“Should any of the above-mentioned persons or institutions
have, after November 11th, 1918, either alienated or charged
the landed property in question, or should a real right, regis-
tered in the name of the aforesaid persons or institutions, have
been, after November 11th, 1918, either at their request or
with their consent, ceded, struck out or modified in any way,
the Court shall restore the entry in the land registers to the
situation which would have existed if the aforesaid persons or
institutions had not made any request or given the consent
necessary to effect the changes in the registers.”’

Article 5.

“The Polish Treasury (fisc), having been entered in accord-
ance with Article x, as owner of a landed property, mar
JUDGMENT No. 7. — POLISH UPPER SILESIA 24

require the eviction of persons who, as a result of a contract
concluded with one of the persons or institutions mentioned in
Article I, remain in occupation of such property after the
coming into force of this law.”

It appears from the wording of Article 2 itself that Poland regards
as null and non-existing rights which private persons may have
acquired by deeds of alienation or other deeds, mentioned in the
article, if such deeds were executed after November rith, 19178.
And, by authorizing the Polish Treasury to demand the eviction
of any persons who, after the coming into force of the law, remain,
in virtue of a contract of the kind contemplated in Article 5, in
occupation of one of the landed properties in question, this article
recognizes a right to disregard even private rights derived from
contracts previous to November rith, 1918.

These articles are applied automatically, without any investig-
ation as to the title of ownership or validity of each transfer or
contract ; any alienation or creation of real rights subsequent to
November 11th, 1918, is null and void, under Article 2, without
regard to the nature or circumstances of the transaction; any
contract concluded with the persons or institutions mentioned
in Article ï at any date whatsoever and giving to a private person
a right to the possession or occupation of.a landed property, may
be annulled at the mere will of the Polish Treasury, under Article 5.

No redress by legal action is open to interested Parties and no
indemnification is provided for by the law.

The Court considers that, apart from the questions which will
be dealt with later, the application of Articles 2 and 5 of the Polish
law of July 14th, 1920, in Upper Silesia is not compatible with the
system established by Head III of the Geneva Convention. For,
on the one hand, these articles may affect private property and
withdraw it from the protective régime instituted by Articles 6
to 22, subjecting it to more serious measures prohibited by the
Convention. On the other hand, they make no provision for any
investigation concerning the validity of a title, and eliminate any
previous investigation of an individual case, though such investiga-
tion is necessary for a correct application of the Convention.

* *
JUDGMENT No. 7. — POLISH UPPER. SILESIA 25

The Respondent, however, contends that the provisions of the
Polish law considered above have no connection with Head III
of the Geneva Convention. For, in the first place, he argues, they
merely give effect to rights which Poland derives from the Treaty
of Versailles and other international ‘instruments connected with
that Treaty; rights which are not affected by the Geneva Convention.
In the second place, even supposing that this was not the case, the
measures taken in application of Articles 2 and 5 of the above-
mentioned law cannot be regarded as measures of liquidation within
the meaning of Articles 6 to 22 of the Geneva Convention. The
real question which the Court has to decide concerns these two
points ; they will be considered in the order in which they have

been mentioned.
A,

In approaching the first point, the Court would recall that which
it has already said in Judgment No. 6: the interpretation of the
Treaty of Versailles and of the other international instruments
cited by Poland must be regarded as a question preliminary or
incidental to the application of the Geneva Convention, and it is
only from this standpoint that the Court can deal with it.

A distinction should be drawn between Article 2 and Article 5
of the Polish law of July 14th, 1920.

As regards Article 2, the essential thing is to decide the two
following questions: (1) Is Poland justified, under the terms of
clause 19 of the Armistice Convention, and, more particularly,
of the first clause of the Protocol of Spa of December ist, 1918,
in regarding as null and void the acts conteniplated in Article 2 ?
and (2) Can the alienation or creation of real rights of the kind
contemplated in Article 2 of the law, which took place between
the date of the Armistice and that of the coming into force of the
Treaty of Versailles, or between the latter date and the transfer
of sovereignty over the part of Upper Silesia allotted to Poland,
be regarded as forbidden by the Treaty of Versailles and more
especially by Article 256 of that Treaty ? :

The clauses in question are as follows :

Armistice Convention of November 11th, 1918.

“19. Financial Clauses. — With the reservation that any future
claims and demands of the Allies and United States shall remain
JUDGMENT No. 7. — POLISH UPPER SILESIA 26

unaffected, the following financial conditions are required:

“Reparation for damage done.

“While the Armistice lasts, no public securities shall be
removed by the enemy which can serve as a guarantee to the
Allies for the recovery of reparation for war losses.

“Immediate restitution of cash deposits in the National Bank of
Belgium, and in general, immediate return of all documents, specie,
and securities of every kind (together with plant for the issue
thereof) affecting public or private interests in the invaded countries.

“Restitution of the Russian and Roumanian gold removed by
the Germans or handed over to them.

“This gold to be delivered in trust to the Allies until the
signature of peace.”

Protocol of Spa of December Ist, 1918.

“{1) While the Armistice lasts, the German Government
undertakes not to take any steps capable of diminishing, in
any form, the value of its public or private domain the com
mon guarantee of the Allies for the recovery of the reparation
to which they are entitled. The German Government under-
takes, in particular, not to alienate, concede or mortgage the
railways, canals, mines, woods, colonial, industrial or commer- .
cial enterprises belonging to it or in which it possesses interests,

“While the Armistice lasts and without prejudice to the arrange-
ments to be adopted for the future, the German Government under-
takes not to effect and not to allow to be effected any exportation
of gold. In case it should find itself under an absolute necessity,
for the normal needs of its economic life, to derogate from this stipu-
lation, it would give prior notice thereof to the Allied Governments.
The German Government also undertakes not to effect or allow
to be effected, apart from the normal needs of its economic life, any
transfer abroad, either directly or through an intermediary, of the
portfolio of foreign bills of the Treasury and of the Reichsbank acting
either in its own capacity or in its capacity as Foreign Exchange
Central, as well as of foreign securities belonging to the German
Government or the Reichsbank, or held by them on loan or pledge.

“Any measure taken contrary to the foregoing stipulations will
be considered by the Allied Governments as null and void, and the
German Government will bear all the consequences that may result
therefrom.”
JUDGMENT No. 7. — POLISH UPPER SILESIA 27

Treaty of Versailles.
Article 256 (paragraphs x and 2).

“Powers to which German territory is ceded shall acquire
all property and possessions situated therein belonging to the
German Empire or to the German States, and the value of such
acquisitions shall be.fixed by the Reparation Commission, and
paid by the State acquiring the territory to the Reparation
Commission for the credit of the Gérman Government on
account of the sums due for reparation.

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

1. — The Court has already been confronted with the problem of
the scope of the Armistice Convention and of the Protocol of Spa in
relation to the Polish law of July 14th, 1920, in connection with
the question which formed the subject of Advisory Opinion No. 6.
In that affair, however, the Court had only to consider certain less
important aspects of the problem: in particular, it had not to
decide the question whether Poland is entitled to rely on the two
instruments in question. For the purposes of that affair, it sufficed _
to observe that the Armistice Convention did not possess the import-
ance which Poland attempted to attribute to it ; but the Court was
‘careful to make an express reservation in regard to the point
above mentioned.

In the present case, the problem arises under different conditions.
The Parties have argued at length in regard to this very question.
whether Poland is entitled to adduce the above-mentioned agree-
ments, a question the importance of which is obvious, having regard
more especially to the first clause of the Protocol of Spa, and which
must be decided.

In this connection it should in the first place be noted that, in the
Court’s opinion, Poland is not a contracting Party either to the

4
JUDGMENT No. 7. -— POLISH UPPER SILESIA 28

Armistice Convention or to the Protocol of Spa. At the time of the
conclusion of those two Conventions, Poland was not recognized
as a belligerent by Germany ; it is, however, only on the basis of
such recognition that an armistice could have been concluded
between those two Powers.

The Principal Allied Powers had, it is true, recognized the Polish
armed forces as an autonomous, allied and co-belligerent (or belli-
gerent) army. This army was placed under the supreme political
authority of the Polish National Committee with headquarters in
Paris. Without considering the question what was at this moment
the political importance of this Committee, the Court observes that
these facts cannot be relied on as against Germany, which had no
share in the transaction. On the other hand, Poland, as it was
becoming constituted in the Russian territories occupied by the
Central Powers, was undoubtedly not at war with Germany ; it is
precisely the absence ofa state of war between Poland and Germany
which explains the fact that Poland, which appears in the Treaty of
Versailles as an Allied Power, is not entitled to benefit by Article 232
of the Treaty, which bestows on these Powers a right toreparation.

This fact is confirmed, inter alia, by the agreement between the
Allied Powers signed at Spa on July r6th, 1920, the provisions of
which agreement regarding the apportionment of sums paid by
Germany on account of reparations are declared to be inapplicable
to Poland. The agreement provides that rights to reparation of
prejudice sustained by Poland, in her capacity as an integral part
of the former Russian Empire, remain reserved in accordance with
Article 116 of the Treaty of Versailles. It must be noted that
this reservation does not imply that Poland in fact possesses rights
of such a nature under the article in question ; the article only
reserves the rights of Russia and does not mention States formed
on part of former Russian territory.

In the Court’s opinion, there has been no subsequent tacit adher-
ence or accession on the part of Poland to the Armistice Conven-
tion or Protocol of Spa. It has been argued that this was brought
about as a result of the declarations of de jure recognition of Poland
made by the Allied Powers and by Germany during the peace nego-
tiations or in the Peace Treaty ; but the instruments in question
make no provision for a right on the part of other States to adhere
tothem. It is, however, just as impossible to presume the existence
of such a right—at all events in the case of an instrument of the
JUDGMENT No. 7. —- POLISH UPPER SILESIA 29

nature of the Armistice Convention—as to presume that the pro-
visions of these instruments can ipso facto be extended to apply
to third States. A treaty only creates law as between the States
which are parties to it ; in case of doubt, norights can be deduced
from it in favour of third States.

In these circumstances, it is not necessary to consider the ques-
tion whether Poland, assuming that she could be regarded as a
Party to the agreements in question, could rely on them, in spite
of the fact that she is not entitled to reparations under Article 232
of the Treaty of Versailles ; nor—supposing that this possibility
existed—the question whether she could assert her rights by her
own individual action and without having recourse to the interven-
tion of interallied organizations.

2.— Having thus shown that Poland cannot rely on the instru-
ments relating to the Armistice in order to render inapplicable the
provisions of the Geneva Convention, the Court must now examine
from the same standpoint the Treaty of Versailles. The article
of the Treaty to be considered in the first place in this connection
is Article 256, which lays down the principle that Powers to which
German territories are ceded acquire all property and possessions
of the Reich and German States.

A preliminary question arises: could the fact that the Treaty
of Versailles, which came into effect as between Germany and Poland
only on January roth, 1920, has existed since June 28th, 1919, as
a signed treaty, result in rendering illegal acts of alienation or other
transactions referred to in Article 2 of the law of July 14th, 1920 ?

Mention may here be made of Article 4 of the Geneva Convention,
which, compared with the Peace Treaty, is a special Convention
and subsequent to it. This article lays down that the date of
transfer of sovereignty over the portion of Upper Silesia. allotted
to Poland is the decisive date for the purposes of the recognition of
vested rights. It is true that this article makes a reservation in
regard to Article 256 of the Treaty of Versailles ; but that article
contains no prohibition of alienation and does not give the State
to whom territory is ceded any right to consider as null and void
alienations effected by the ceding State before the transfer of sover-
eignty. Moreover, Article 92, paragraph 3, of the Treaty of Versail-
les confirms this construction with particular reference to Poland ;

a
. JUDGMENT No. 7. — POLISH UPPER SILESIA 30

for it speaks of property and possessions of the Empire or German
States “‘ which pass to Poland with the territory transferred”. Con-
sequently, even if the reservation made in Article 4 of the Geneva
Convention in regard to Article 256 of the Treaty of Versailles
covered more than the transfer to Poland of the vested rights of the
Reich and German States as they existed on the date of transfer,
it could not in any case be construed as annulling or rendering
liable to annulment any alienation of public property.

The abandonment by Germany of her rights and titles under
Article 88 of the Treaty of Versailles merely contemplates the
possible renunciation of sovereignty over the territories in question
and cannot involve the immobilization of all movable and immov-
able property belonging to the State during the period from the
day of the coming into force of the Peace Treaty until the transfer
of sovereignty over Upper Silesia.

Germany undoubtedly retained until the actual transfer of
sovereignty the right to dispose of her property, and only a misuse
of this right could endow an act of alienation with the character
of a breach of the Treaty ; such misuse cannot be presumed, and
it rests with the party who states that there has been such misuse
to prove his statement.

Nor would it be legitimate to construe the Treaty of Versailles
in such a way as to incorporate therein certain clauses of the Armis-
tice Convention and of the instruments following it, so as to carry
back to November 11th, 1918, the decisive date as from which
rights acquired by individuals, under contracts concluded by them
with the Reich and German States, should be regarded as void or
liable to annulment. The special provisions of Article 75 which
relate to Alsace-Lorraïne, a territory restored to French sovereignty
as from November 11th, 1918, and according to which the decisive
date is that of the French Decree of November 30th, 1918, make it
clear that a date previous to the latter could not have been contem-
plated by the Treaty in the case of territories which only change
hands by cession. The decisive date therefore, for these territories,
cannot be other than that of the transfer of sovereignty.

Similarly, it is impossible, in the Court’s opinion, to adduce
Article 248 of the Treaty of Versailles in support of Poland’s case.
This article establishes a first charge on the property and resources
of the German Empire and States, but it does not imply a prohibi-
tion of alienation. At all events, whatever the scope of this article
JUDGMENT No. 7. — POLISH UPPER SILESIA 31

may be, the rights reserved to the Allies under it are exercised
through the Reparation Commission ; the article cannot be con-
strued as authorizing an individual Power on its own account to
treat an alienation as null and void, even in the case of a Power
entitled to reparations.

*
* *

As regards Article 5 of the Polish law of July 14th, 1920, Poland
claims to have acquired, free from all charges, the property men-
tioned in Article 256 of the Treaty of Versailles.

This question has already been considered by the Court in its
Advisory Opinion No. 6. The Court has held that Article 256 of
the Treaty of Versailies cannot be regarded as justifying Article 5,
because, although the Treaty does not expressly and positively
enunciate the principle that in the event of a change of sovereignty,
private rights must be respected, this principle is clearly recognized
by the Treaty. Nothing has been advanced in the course of the
present proceedings calculated to alter the Court’s opinion on this
point. .

The Court, therefore, has arrived at the conclusion that no title
of international law has been cited by Poland which enables
Articles 2 and 5 of the law of July r4th, 1920, to be regarded as
the exercise of a right overriding her obligations under Head III
of the Geneva Convention.

B.

The Respondent contends in the second piace that, even if the
Polish law of July r4th, 1920, were not justified by international
titles which prevent the application of the Convention of Geneva,
the suppression of private rights effected by it could not be regarded
as a measure of liquidation within the meaning of Articles 6-22 of
that Convention. For, he argues, the law is based on considerations
foreign to the conception of liquidation: it applies to certain —
property, rights or interests without regard to the nationality of
persons, whereas the régime of liquidation only applies to German
private property as such.

Relying on considerations of this nature, Poland, after requesting
the Court to dismiss the Applicant’s claim set out in submission
JUDGMENT No. 7. — POLISH UPPER SILESIA 32

No. 1, submits that there is no ground for a decision as to the con-
formity or non-conformity with the provisions of the Geneva
Convention of the attitude of the Polish Government in regard to
the Oberschlesische and Bayerische Companies, seeing that no
measures of liquidation have been taken by that Government.

The German Government, on the other hand, has contended
that liquidation within the meaning of the Treaty of Versailles and
of the Geneva Convention includes any measure contrary to gener-
ally accepted international law which affects the property of
German nationals, no matter whether such measure is authorized
by a treaty provision (authorized liquidation) or whether it is not
(unauthorized liquidation) ; liquidation, according to this argument,
would embrace all cases in which a private right of a German
national is not respected.

Confronted with these conflicting arguments, the Court makes
the following observation.

In the German view, “‘authorized liquidation” includes any
measure involving a derogation from generally accepted interna-
tional law, in so far as such measure is expressly sanctioned by an
international agreement. The Court has already observed that it
has no need to stop to consider this theory, of which it notes merely
the essential element, namely the fact that any such measure cons-
titutes a derogation from generally accepted international law. <A
fortiori this is an element in the notion of “unauthorized liquidation’.

Now, the idea which clearly emerges from Head III of the
Geneva Convention is, as has already been stated, that expropriation,
in the cases and under the conditions mentioned therein, is the only
measure not allowed by generally accepted international law which
may be taken in regard to German private property in Polish
Upper Silesia.

On the other hand, as regards the Polish submission referred to
above, the Court, though in no way denying that the liquidation
régime established by the Treaty of Versailles and the actual
measures of expropriation permitted by Head III of the Geneva
Convention apply to German private property as such, cannot
attach to the fact that Articles 2 and 5 of the law of July 14th, 1920,
apply to a certain class of property, no matter what the nationality
of the owners may be, the importance and effect which are attri-
buted to that fact by Poland. Evenifit were proved—a point which
JUDGMENT No. 7. — POLISH UPPER SILESIA 33

the Court does not think it necessary to consider—that, in actual
fact, the law applies equally to Polish and German nationals, it
would by no means follow that the abrogation of private rights
effected by it in respect of German nationals would not be contrary
to Head HI of the Geneva Convention. Expropriation without
indemnity is certainly contrary to Head III of the Convention ;
and a measure prohibited by the Convention cannot become lawful
under this instrument by reason of the fact that the State applies
it to its own nationals.

*
* *

In the last place, Poland has argued that abrogations of rights
of the nature of those effected under the law of July r4th, 1920,
would, in any case, come under Head II of the Convention, in
regard to which Article 5 only provides for recourse by the interested
Party to the Upper Silesian Tribunal.

It is clear that any infraction of Head III of the Convention,
which constitutes an exception to the general principle of respect
for vested rights, is at the same time an infraction of Head II.
The foregoing considerations have established that the measures in
question are contrary to Articles 6-22 ; this conclusion cannot be
weakened by the fact that these same measures are also contrary
to Head II or to certain clauses of that Head. As Head III
contains special regulations constituting a derogation from the
régime established under Head II, it is necessary, in order to
define the sphere of application of the clauses composing Head ITI,
to begin by construing these latter clauses and not the more general
rules contained in Head IT.

This conclusion cannot be affected by the clause in Article 5
which gives the interested Party the right to apply to the Upper
Silesian Arbitral Tribunal for a decision on the question whether
and to what extent compensation is due for the abrogation or
diminution of vested rights, whilst paragraph 2 of Article 23 makes
a reservation in regard to the jurisdiction acquired by the Germano-
_ Polish Mixed Arbitral Tribunal under the provisions of the Treaty
of Versailles. The two clauses only contemplate an action brought
by the interested Party against the State, whereas the Court’s
jurisdiction is in respect of disputes between the German and Polish
Governments. The Court is definitely given jurisdiction by
JUDGMENT No. 7. — POLISH UPPER SILESIA 34

Article 23, and there is nothing to prevent that jurisdiction from
extending to cases in which the Upper Silesian Arbitral Tribunal
and not the Germano-Polish Mixed Arbitrai Tribunal would be
competent to receive claims for indemnity on the part of the
interested Party. The Court therefore does not find it necessary
to enter into the question of the line of demarcation between the
jurisdictions of these two Tribunals, seeing that this demarcation
can neither restrict nor extend the Court’s power, under Article 23,
to take cognizance, as regards the two Governments concerned, of
measures contrary to Head III of the Convention.

The Court, therefore, is of opinion that the application in Upper
Silesia of Articles 2 and 5 of the Polish law of July 14th, 1920, is not
in conformity with Articles 6-22 of the Geneva Convention, in so
far as the said articles affect the persons or companies referred to in
Head IIT of the Convention.

2
>

Submission No. 2, which the Court will now proceed to examine,
is divided into two parts, a and 6, the latter of which is contingent
upon the answer given to the first. The Court isin fact, in the event
of its holding, in its judgment on submission 2 a, that the attitude
of the Polish Government in regard to the Oberschlesische and
Bayerische Companies had not been in conformity with Article 6
and the following articles of the Geneva Convention, asked to state
what attitude on the part of that Government would have been in
conformity with the provisions in question. In Judgment No. 6,
the Court declared the application to be admissible as regards
submission 2b as well as submission 24. It recognized that the
former submission was intended to obtain a decision and not—as
contended by the Respondent—merely an advisory opinion. The
Court therefore did not, at the outset, declare that it had no com-
petence to deal with this submission, in spite of the fact that the
Applicant had couched it in the form of a question. In proceeding
thus, however, the Court supposed that the latter would, in his
Case on the merits of the dispute, formulate properly set out claims
in regard to 28 of his submissions. But, in the proceedings on the
merits, the data anticipated by the Court have not been furnished,
and the point in question has remained in its purely interrogative
form. In these circumstances, the Court is not in a position to give
JUDGMENT No. 7. — POLISH UPPER SILESIA 35

judgment on this submission ; for though it can construe the sub-
missions of the Parties, it cannot substitute itself for them and
formulate new submissions simply on the basis of arguments and
facts advanced. ;

The Court, therefore, when considering the second submission,
will only have to deal with submission 2 a.

In undertaking this, the first thing to be borne in mind is that
the Chorz6w factory was taken over by the Polish Government
under the Polish law of July 14th, 1920. Now, if, as has already
been demonstrated, the application of this law, in so far as it
affects the property contemplated in Article 6 of the Geneva Con-
vention, is contrary to Article 6 and the following articles of that
instrument, the point which the Court has to decide, in order to
be able to give judgment on submission 24, is whether the Ober-
schlesische and the Bayerische are really the owners of the rights
which together constitute the Chorzéw enterprise. For if this
point is established, it automatically follows that these rights
are protected by Article 6 of the Geneva Convention, the other
conditions required by the article being fulfilled in the present
case ; subject, however, to the question as to the manner in which
the principles laid down above in regard to international engage-
ments resulting from the signature and the coming into force of the
Treaty of Versailles apply in the present case.

A.

As regards in the first place the Oberschlesische, it is common
ground that the factory, which is situated in Polish Upper Silesia,
is a large industrial undertaking, and it has not been contested that
the Oberschlesische is a company controlled by German nationals.

Before proceeding further, the Court considers it well to recall
the following facts :

Amongst the contracts or other legal instruments drawn up at
Berlin on December 24th, 1919, with a view to the formation of the
Oberschlesische and the sale by the Reich to that Company of the
Chorzéw factory, are included the following, amongst others :

(x) The deed founding a limited liability company called the
Stickstoff-Treuhand-Geselischaft (hereafter called the ‘“‘Treuhand”’),
a Company formed for the purchase and sale of shares and other
JUDGMENT No. 7. — POLISH UPPER SILESIA 36

interests in companies for the manufacture of nitrates and also to
act in the capacity of trustee in regard to the chemical industry.

(2) The deed founding the Oberschlesische, a Company formed for
the acquisition, construction and exploitation of nitrate works,
more particularly in Upper Silesia, and of chemical works of all
kinds.

(3) The contract concluded between the Reich, the Oberschlesi-
sche and the Treuhand, a contract according to which the whole of
the factory for the production of nitrates, with accessory instal-
lations, situated at Chorzôw, was ceded by the Reich to the Ober-
schlesische, the Treuhand taking over in the place of the Oberschle-
sische, as sole and independent debtor, all the obligations imposed
by the contract upon the latter in regard to the Reich ; as guarantee
for the debts due to the Reich under the contract, the Treuhand
undertook to obtain for the Reich a lien on all the shares of the
Oberschlesische. The Reich was authorized itself to exercise all
the rights resulting from the possession of the shares, and in
particular the right to vote at the general meeting of shareholders,
but agreed that the management of the working of the Oberschle-
sische should be left in the hands of the Bayerische. An alienation
of the shares so pledged would be authorized only with the approval
of the Reich even after the lien had expired ; even after that date
the Reich would retain possession of the shares as a guarantee
for the fulfilment of the obligation.

On the basis of these facts, Germany maintains that Poland could
only acquire the Chorzéw factory, which was the validly acquired
property of the Oberschlesische, under the conditions laid down in
Article 7 of the Geneva Convention and that, in default of the
application of this article, the attitude of Poland in regard to the
Oberschlesische was not in conformity with Article 6 and the fol-
lowing articles of that Convention. For, according to the German
argument, the factory is, under the second sentence of the article
in question, immune from any measure of liquidation because it
possesses the character of property, rights and interests of German
nationals or of companies controlled by German nationals.

Poland, on the other hand, denies that Article 6 and the follow-
ing articles are applicable in this case, because no measure of liquid-
ation has been taken by the Polish Government. In her conten-
tion, Poland, by applying the law of July 14th, 1920, has simply
JUDGMENT No. 7. —- POLISH UPPER SILESIA 37

asserted the rights of ownership accruing to her under the Treaty
of Versailles, and only in so far as these rights are secured to her
by the Armistice of November 11th, 1918 (clause 19), and by the
Protocol of Spa of December 1st, 1918 (clause x). She regards
the transfer of the ownership of the factory from the Reich to the
Oberschlesische as having taken place in violation of these inter-
national instruments, which, in her contention, determine the situa-
tion of the factory in regard to Poland and Germany ; Article 6
and the following articles of the Geneva Convention cannot there-
fore, she argues, be adduced by Germany against her in the present
case.

In addition to this main argument, based on international instru-
ments such as the Armistice Convention, the Protocol of Spa and
the Treaty of Versailles, Poland has, in the second place, disputed
the validity in municipal law of the contracts by which the Ober-
schlesische was founded and has acquired the rights of the Reich
in respect of the Chorzéw factory.

It appears, therefore, that Poland, in disputing the right of the
Oberschlesische to the factory, relies principally on the contention
that she herself possesses a better title, reposing on international
agreements.

*
@ *

The Court, in approaching this latter point, desires to observe
that what it has had occasion to state above in regard to submis-
sion No. 1 applies equally to the particular case under consideration.
Thus it has already been shown that the application of Articles
2 and 5 of the law of July 14th, 1920, to the Chorzéw factory falls
within the scope of Articles 6-22 of the Geneva Convention and
that Poland cannot claim either under the Armistice or under the
Protocol of Spa or under Article 256 of the Treaty of Versailles,
rights which set aside the application of that Convention.

It remains, however, to consider whether Poland can rely as
against Germany on the contention that there has been a misuse
of the right possessed by the latter to alienate property situated
in the plebiscite area, before the transfer of sovereignty.

In the Court’s opinion, such misuse has not taken place in the
present case. The act in question does not overstep the limits of
the normal administration of public property and was not designed
JUDGMENT No. 7. — POLISH UPPER SILESIA 38

to procure for one of the interested Parties an illicit advantage and
to deprive the other of an advantage to which he was entitled.
The annulment of the contract concluded in 1915 between the Reich
and the Bayerische and the substitution for it of the contract of
December 24th, 1919, between the Reich, the Oberschlesische
and the Treuhand appears in fact to have fulfilled a legitimate
object of the administration, namely, the abandonment by the
Reich of an entreprise showing a serious deficit, by means of a
sale under conditions offering a reasonable guarantee that the
capital invested would eventually be recovered. In this connec-
tion it should be observed that by the conditions of the contract
regarding the sale of shares and in particular by reserving to itself
85-90% of the surplus obtained, the Reich guaranteed itself against
the possible results of the depreciation of the mark. The Reich
had, at all events, a contractual right to abandon the enterprise,
in which case the Bayerische had, under its 1915 contract with the
Reich, a right to acquire the factory. Moreover, it was the
Bayerische which, in conjunction with another Company, the
Deutsche Petroleum A.-G., had founded the Treuhand which owned
all the shares of the Oberschlesische ; and the purchase of the factory
by the latter may therefore be regarded, in a sense, as the exercise,
modified in accordance with circumstances, of the right of purchase
possessed under the contract of March 5th, 1915, by the Bayeri-
sche which, by itself, had not the necessary funds at its disposal.

In the same connection, the Court desires to observe that,
contrary to that which has been maintained by Poland, there are
not, in its opinion, sufficient grounds for regarding the business
transacted by means of the instruments above mentioned as other
than a genuine transaction.

Again, the Court cannot regard the alienation as an act calculated
to prejudice Poland’s rights. At the time when the alienation took
place (Auflassung and entry in the land register, January 28th-29th,
1920), the Treaty of Versailles was already in force. An opinion
must therefore be formed regarding the good faith of the Govern-
ment of the Reich in the light of the obligations arising out of this
Treaty, and not on the basis of other international agreements—
such as for instance the Geneva Convention—which did not
exist at that date and the conclusion of which could not even be
foreseen. Now, under the Treaty of Versailles, Germany could
only foresee two possibilities, either that Poland would claim the
JUDGMENT No. 7. — POLISH UPPER SILESIA 39

factory as Reich property, or that she would claim the right
to liquidate it as belonging to a company controlled by German
nationals, such as the Oberschlesische. The advantage for Poland
of the former alternative over the latter would have consisted in the
possibility of directly acquiring the ownership under Article 256,
at a price to be fixed by the Reparation Commission instead of
obtaining it by application of the liquidation procedure referred
to in Article 297. This difference, however, cannot suffice to
justify the view that the alienation was contrary to the obligations
arising under the Treaty of Versailles and that it was even null and
void or contrary to the principles of good faith.

Moreover, if the Reich had denounced the contract of 1915, as
it was certainly entitled to do, and if no transaction, similar in result
to that effected by means of the contracts of 1919, had taken place,
Poland would most likely have been placed in a much less favour-
able position than that created by those contracts; for the
Bayerische would have found itself unable to continue to operate
the factory, in which case Poland would have found a factory
closed down.

The Court therefore declares that Poland’s contention to the
effect that the transaction of December 24th, 1919, was an act in
fraudem creditorum, is unfounded.

In the last place, Poland has contended that the transaction
by which the transfer of the Chorzéw factory from the Reich to
the Oberschlesische was effected, took place at a date when the
Treaty of Versailles was signed though not yet in force, and has
argued from this that as, in her opinion, the Treaty of Versailles
did not permit Germany to alienate properiy, the action of the
German Government in selling property situated in the territory
included in the cession and placing the value of this property out-
side this territory was contrary to international law, which is essen-
tially based on the.good faith of the contracting Parties.

As regards this argument, the Court may confine itself to observ-
ing that, as, after its ratification, the Treaty did not, in the Court’s
opinion, impose on Germany such obligation to refrain from aliena-
tion, it is, a fortiori, impossible to regard as an infraction of the prin-
ciple of good faith Germany’s action in alienating the property before
the coming into force of the Treaty which had already been signed.
JUDGMENT No. 7. — POLISH UPPER SILESIA 40

. In these circumstances, the Court need not consider the question
whether, and if so how far, the signatories of a treaty are under an
obligation to abstain from any action likely to interfere with its
execution when ratification has taken place.

The Court therefore arrives at the conclusion that there is no
instrument of international law which can be adduced to pre-
vent the application of the Geneva Convention to the rights
of the Oberschlesische in respect of the Chorzéw factory. Since it
discards the arguments of the Respondent in regard to this point,
the Court need not consider whether the alleged violation by Ger-
many of an international engagement contracted by her would
have justified Poland in treating the alienation as null and void ;
or whether, on that account only, reparation would be due by
Germany for breach of an international engagement.

If, for the reasons set out above, the alienation of the Chorz6w
factory under the contract of December 24th, 1919, does not con-
stitute a breach of an engagement entered into by Germany in rela-
tion to Poland, the question of the applicability of the Geneva
Convention to the Oberschlesische must be considered from
-still another standpoint. Does not the situation created by
the contract of December 24th, 1919, though valid in municipal
law and compatible with Germany’s international obligations,
evade the application of Articles 6-22 of the Geneva Con-
vention ?

This contract, more particularly in Articles 6 and 9, secures to the
Reich in its capacity as pledgee of all the shares of the Oberschle-
sische, rights, such as the right to vote at the general meeting of
shareholders, which belong to the owner of theshares. The Applic-
ant has stated amongst other things—and his statement has not
been disputed—that the Reich, as it only holds the shares as
security for the amount owing to it, has never exercised its right
to vote, and that it has, in spite of this right, a fundamentally
restricted influence over the Company owing to the fact that, under
the same contract, it agreed, in relation to the Oberschlesische, that
the management of the enterprise should be entrusted to the Baye-
rische.
JUDGMENT No. 7. — POLISH UPPER SILESIA 41

Nevertheless, even granting that the position of the Reich, as
pledgee, were equivalent in fact and from an economic standpoint
to that of owner of the shares, the application to the Oberschle-
sische of Article 256 of the Treaty of Versailles would not be justi-
fied. This article contemplates property of the Reich and German
States, not private concerns in which the Reich or German States
have a preponderant interest. The article in question, which
relates to the transfer of public property as a result of cessions of
territory, must, in accordance with the principles governing State
succession—principles maintained in the Treaty of Versailles
and based on considerations of stability of legal rights—be con-
strued in the light of the law in force at the time when the transfer
of sovereignty took place. Now at that time, the ownership of the
Chorzéw factory undoubtedly belonged to the Oberschlesische and
not to the Reich.

In a similar connection, the further question might be examined
whether the Oberschlesische, having regard to the rights conferred
by the contract of December 24th, 1919, on the Reich in respect
of that Company, should be regarded as controlled by the Reich and,
should this be the case, what consequences would ensue as regards
the application of the Geneva Convention. |

It is, however, not necessary for the Court to go into this question.
- The Respondent, who adopts the standpoint that no measure
of liquidation has been taken by the Polish Government in respect
of the Chorzéw factory, has not raised it, even as a subsidiary point,
and it would seem that he does not dispute—apart from the argu-
ment regarding the fictitious character of the agreements of Decem-
ber 24th, 19r9—the fact that the Oberschlesische is a company
controlled by German nationals.
JUDGMENT No. 7. —- POLISH UPPER SILESIA 42

With regard to the argument of the Respondent to the effect
that the contract of December 24th, 1919, and the transfer of owner-
ship on the following January 28-20th, by means of Auÿlassung
and entry in the land register, are fictitious or fraudulent, it should
in the first place be observed that the Court cannot consider this
argument, in sc far as it may be assumed that the intention of the
Respondent is to support it, by considerations of German municipal
law, as an independant one ; for the Polish law, the application of
which in regard to the Chorz6w factory has led to the present dis-
put between the twe Powers, is based neither directly nor indirectly
on the validity or invalidity, from the standpoint of German muni-
cipal law, of the transfer of the properties covered by it ; it is based
exclusively on the date of the transfer in relation to November 11th,
1918. In the next place, it must be observed that the Court, in
the exercise of the jurisdiction granted by Article 23 of the Geneva
Convention, will not examine, save as an incidental or preliminary
point, the possible existence of rights under German municipal law.

The Court has already observed that from the point of view of
international law, the transaction under consideration must, in its
opinion, be regarded as effective and as entered into in good faith.
The Court has found in the arguments advarced by Poland in sup-
port of the above-mentioned contention no reasoning calculated
to modify, from the standpoint of municipal law, the conclusion
at which it has thus arrived on the basis of international law.
In the present case, in fact, the Court holds that the Oberschle-
sische’s right of ownership of the Chorzéw factory must be regarded
as established, its name having been duly entered as owner in the
land register. If Poland wishes to dispute the validity of this
entry, it can, in any case, only be annulled in pursuance of a
decision given by the competent tribunal ; this follows from the
principle of respect for vested rights, a principle which, as the Court
has already had occasion to observe, forms part of generally
accepted international law, which, as regards this point, amongst
others, constitutes the basis of the Geneva Convention.

This is true, though, as is pointed out by Poland, the
contracts of December 24th, 1919, had been concluded at a
time when, not having been entered in the commercial register,
the Oberschlesische possessed as yet no legal personality.
The Court, in fact, notes that the contracts in question were
concluded after the creation of the Oberschlesische and by its
JUDGMENT No. 7..— POLISH UPPER SILESIA 43

regularly appointed Directors ; it further notes that the transfer
of the Chorzoéw factory was effected by means of the Auflassung,
_a transaction of the nature of a contract, and of the entry in the
land register, which formality took place only after the entry of
the Oberschlesische in the commercial register. Moreover, by
acts, extending over a period of more than two years, all the
Parties concerned have clearly shown that they still recognized
the validity of the contracts in question.

B.

One last point remains to be considered, namely, the rights of
the Bayerische, a Company whose character as a company controlled
by German nationals has not been disputed.

In virtue of the contract concluded with the Reich on March 5th,
1915, the Bayerische had managed the exploitation of the
factory of Chorz6w on behalf of the Reich. For this purpose it
was to make use of all its experiments, patents, licences, etc.,.and
of its supply contracts. In consideration of the use of its patents,
licences, experiments, etc., and for the management and organiz-
ation of the sale of the products, the Bayerische was entitled to a
payment per kilogram of nitrate manufactured and to a share of
the profits. Following the contract concluded on December 24th,
1919, between the Reich, the Oberschlesische and the Treuband,
the Oberschlesische and the Bayerische arranged by an exchange of
letters dated December 24th and 28th, 1919, that the Bayerische
should continue until March 31st, 1941, to manage the exploitation
of the Chorzéw factory, on behalf of the Oberschlesische, by analo-
gous application of the contract for the exploitation of the factory
concluded between the Bayerische and the Reich and expiring on
December 31st, 1919. Some time later, on November 25th, 1920,
a new contract was concluded between the Bayerische and the
Treuhand Company, which owned all the shares of the Oberschle-
sische with the consent of the latter Company. This contract
governs the relations between the three Companies and in partic-

-ular modifies the arrangement made by the exchange of letters

above mentioned, in the sense that the management of the exploi-

tation was to be undertaken by the Management Committee of

’ the Oberschlesische, which would be composed of not less than two

nor more than four members of the Management Committee of
6
JUDGMENT No. 7. — POLISH UPPER SILESIA 44

the Bayerische, appointed by the latter and approved by the
Treuhand.

If, as the Court holds, the Oberschlesische is to be regarded as
lawful owner of the Chorzôw factory, the contracts concluded by
it in regard to that factory must likewise be regarded as valid. The
question is whether, by taking possession of the Chorzéw factory
on July 3rd, 1922, and, by operating it, making use of the experi-
ments, patents and licences, etc. of. the Bayerische, Poland has
unlawfully expropriated the contractual rights of that Company.
In regard to this point, the Court does not think that any import-
ance attaches to the fact that, according to the contract of
November 25th, 1920, the management of the exploitation was
undertaken by the Management Committee of the Oberschlesische.
In actual fact, it was the members of the Management Committee
of the Bayerische, appointed for this purpose, who had the man-
agement of the exploitation. Moreover it is clear that the rights
of the Bayerische to the exploitation of the factory and to the
remuneration fixed by the contract for the management of the
exploitation and for the use of its patents, licences, experiments,
etc., have been directly prejudiced by the taking over of the
factory by Poland. As these rights related to the Chorz6w factory
and were, so to speak, concentrated in that factory, the prohibi-
tion contained in the last sentence of Article 6 of the Geneva Con-
vention applies in respect of them. Poland should have respected
the rights held by the Bayerische under its contracts with the
Oberschlesische and the Treuhand ; and the attitude of Poland in
regard to the Bayerische has therefore, like its attitude in regard
to the Oberschlesische, been contrary to Article 6 and the following
articles of the Geneva Convention.

A study of the relations between the Reich and the various
companies interested in the Chorzéw factory, and between these
companies inter se, shows that the industrial undertaking in ques-
tion must be regarded as composed of two different elements, one
of which—essential in character—namely, the technical and
commercial element, is represented and always has been represented
by the Bayerische. The length of the period for which the con-
tract with that Company was signed proves that the intention was
to establish the conditions necessary to enable it to bring into the
concern the patents, licences, etc. belonging to it, in spite of the
fact that the factory was not its property. The rôle of, first the
JUDGMENT No. 7. —~ POLISH UPPER SILESIA 45

Reich, and later the Oberschlesische, was rather to finance the
operation of these patents and licences in the factory by the Baye-
rische. The factory has always constituted an economic entity
under the managemeat of the Bayerische.

IT.

SO-CALLED CASE OF THE LARGE RURAL ESTATES.
I.
General Observations.

Since the applicant Party, in the course of the proceedings, has
amended the terms of submission No. 3 of the Application, and
consequently also of the second Application, and made this amended
submission a subsidiary one, the Court has, before proceeding
further, to consider on which submission it should decide in the
first place.

In the Court’s opinion it appears from the documents of procedure
that the new submission, which is described as subsidiary, consti-
tutes, in the German Government’s view, merely a modification
of language which does not affect the substance of the submission
contained in the Application ; this being so, it is designed to replace
the original wording and so to become the principal submission.
Only if-the Court were to hold that the new submission was inad-
missible, or modified the substance of the submission contained in
the Application, would the latter submission, never having been
withdrawn, once more enter into consideration.

The question of admissibility does not arise, as it has been disposed
of by agreement between the Parties ; it therefore only remains to
ascertain whether the so-called subsidiary submission is substan-
tially equivalent to the submission in the Application.

This latter question is closely bound up with the question whether
the notices contemplated in Article 15 of the Geneva Convention
are only subject to the formal conditions resulting from that
article, or whether they may also only be served in respect of estates
liable to expropriation under Article 6 and the following articles ;
for in the latter case the notification of an intention to expropriate
would only be in conformity with the Convention if the expropria-
tion itself were so.
JUDGMENT No. 7. — POLISH UPPER SILESIA 46

The Parties do not seem to dispute the fact that it is the second
of these alternatives which has been adopted by the Court in
‘Judgment No.6. When agreeing that the argument should be con-
fined to the German subsidiary submission, after having admitted
that the Court had ruled that the notices possessed a definitive
character, the Agent for the Respondent also declared that he agreed
to ask the Court not only to decide whether the notices were regular
in form, but also and above all whether they have been served in
respect of estates liable to expropriation under Article 6 and the
following articles of the Geneva Convention.

Indeed, only a judgment of this kind will now'satisfy the interests
of either Party: if the Court were now to decide that the notices
were regular in form, but were at the same time to leave the question
undecided whether the actual expropriation of the properties in
respect of which notice was given would not be contrary to the
Convention, the two Governments and the owners concerned ‘would
find themselves, seventeen months after January ist, 1925, in the
same situation as when the disputes arose.

In the opinion of the Court, as stated in Judgment No. 6, the
giving of notice cannot be regarded as in conformity with the
Convention except in respect of estates in regard to which the condi-
tions requisite for expropriation exist. The notice contemplated in
Article 15 is in fact the first step in the procedure of expropriation,
which constitutes a whole governed by the same principles.. The
serious restrictions upon rights of ownership which result from the
giving of notice can clearly only be imposed on estates liable to
expropriation and pending the final decree ordering expropriation.
The long delay—of more than two years and a half—between the
transfer of sovereignty and January Ist, 1925, would undoubtedly
have enabled the Polish authorities to obtain information concerning
the estates liable to expropriation before taking a decision in regard
to them. There was nothing to prevent the Polish Government
from approaching, if necessary for this purpose, the owners concerned
in order to obtain their opinion with a view to deciding whether
the conditions requisite for expropriation existed ; and the Polish
Government appears, indeed, to have availed itself of this possibility
in certain cases. But this step should precede and prepare the way
for,.and not follow, the giving of notice, which sets in motion the
procedure of expropriation,
JUDGMENT No. 7. — POLISH UPPER SILESIA 47
For the foregoing reasons, the Court will, for the purposes of its
judgment, base itself on the so-called subsidiary submission.

*
* *

Although, in the Case, the notices given had already been criticized
on the ground that they did not indicate sufficiently clearly the
area to be expropriated, it is only in the Reply, and following upon
certain explanations and remarks contained in the Counter-Case,
that the Applicant felt in a position to state that a fresh difference
of opinion relating to the interpretation and application of Article 15
of the Geneva Convention had arisen and requested the Court also
to give judgment on this matter. This is the question which
has been referred to as the question of the individualization of the
estates to be expropriated.

The Polish Government at first contended that the new German
Request was not admissible on the ground that Article 23, para-
graph x, of the Convention, in submitting to the Court’s jurisdiction
differences of opinion respecting the construction and application
of Articles 6 to 22, did not cover differences of opinion as to the
meaning of terms used by the Polish authorities. |

. Even on the assumption that this objection had not been aband-
oned, the Court could not admit it, because the difference of opinion
in question relates to whether the Polish authorities have rightly or
wrongly interpreted Article 15 of the Convention, and it is scarcely
to be doubted that such a difference of opinion is amongst those
contemplated by Article 23, paragraph 1.

Although the Geneva Convention does not expressly deal with
this point, it follows from the very nature of the notice contemplated
in Article 15 that it must embody the indications necessary for
the identification of the large estate which the Polish Govern-
ment intends to expropriate. In regard to this point there is no
disagreement between the two Governments.

On the other hand, it is also certain that Article 15 does not lay
down any hard and fast form for the identification of estates ; this
may therefore be done in any manner which attains the required
result. Nullity is not expressly provided for in Article 15, and it
cannot be presumed. There can therefore be no question of nuility
unless there is a real uncertainty as to whether some particular
JUDGMENT Ne. 7. — POLISH UPPER SILESIA 48

estate is covered by a notice or not, and then only in so far as this
uncertainty is ascertained to exist.

It follows from these same principles that a notice which includes
both land not liable to expropriation and land liable to expropria-
tion, though ineffective as regards the former, remains effective as
regards the latter. .

+:
* *

The rural estates covered by the notices referred to in the Ger-
man Government’s submission No. 3 are, in some cases, estates
the exclusively agricultural character and use of which have not
‘ been disputed, and, in others, estates which, in the contention of
the Applicant, are principally devoted to serving the needs of
industrial enterprises. As regards this latter category, Article 9,
§ 3, paragraph 2, of the Convention is the applicable provision in
every case ; the Court therefore considers it expedient first of all
to approach the interpretation of it from a general standpoint and
thus to establish the principles in the light of which it will subse-
quently decide whether each of the estates in question does or does
not fall within the scope of this clause.

Article 9, § 3, paragraph 2, of the Convention runs as follows :

“Rural estates which are devoted principally to serving the
needs of large industrial undertakings (dairy farming estates,
timber raising estates, etc.) shall be considered, for the purposes
of this article, as ‘forming part of the undertakings the require-
ments of which they may serve.”

It should at once be stated that this clause forms part of Chapter I
of. the Third Section of the Convention, a Chapter which
deals with large scale industry, whilst large rural estates form the
subject of the second Chapter. It would not therefore be correct,
in order to be able to construe the clause in question limitatively, to
regard it as an exception to the principle of the liability to expropria-
tion of the large rural estates. Though it may be said that, in a
sense, Article 9, § 3, paragraph 2, limits the general principle con-
tained in Article 12, paragraph 1, it is nevertheless true that its
place in the system established by the Convention is entirely differ-
ent from that occupied by Article 12. Article 9, § 3, paragraph 2,
being included in the system of rules relating to large scale industry,
JUDGMENT No. 7. — POLISH UPPER SILESIA 49

must be construed having regard, above all, to the relation in which
it stands to those rules. ;

Its object is undoubtedly to maintain industrial enterprises in
their entirety and to their full capacity. It is clearly in considera-
tion of this relation between an enterprise and rural property that
the Convention, on the one hand, in Article 13, paragraph 2, sets
aside the application of the provisions regarding expropriation of
rural estates, in so far as concerns agricultural land which, in
accordance with the terms of Article 9, § 3, paragraph 2, is
to be regarded as forming part of such an enterprise. For the
same reason, on the other hand, the Convention allows such land
to be expropriated together with the enterprise, either under the
special. conditions contemplated in Article 7, or, in accordance
with Article 8, after fifteen years from the transfer of sovereignty.

The rural estates in question are those devoted principally to
serving the needs of large industrial undertakings. The essential
factor therefore is the purpose to which they are devoted, i.e. a
situation of fact established by the will of man. No doubt the
subserviency of the estate to the enterprise must be genuine and
reasonable ; but it is in no wise essential that this subserviency
should be in the nature of a necessity. Rather should the.stand-
point be adopted that no one is better acquainted with the needs
of an enterprise than its owner himself and that, consequently,
it will as a rule suffice to ascertain that the subserviency exists.

The purpose above referred to must be the principal purpose
served by the estate. There is no need for it to be the only purpose
served ; if an estate is devoted principally to providing milk or
meat for the workers, this subserviency is not disturbed by the fact
that more than is required is produced and this surplus is sold to
the general public.

The principal purpose to which an estate is devoted, which purp-
ose, in the Court’s opinion, may also result from an accumulation
of different uses, must be to serve the needs of an enterprise. It is
chiefly with regard to the determination of these needs that the
Parties disagree, the Polish Government contending that the needs
must be genuine, actually existing at the present time, enduring
and essential to the enterprise, whilst the German Government
maintains that any genuine needs of an enterprise may be taken
into account, even future or temporary needs, and needs not strictly
essential to the enterprise as such.
JUDGMENT No. 7. — POLISH UPPER SILESIA 50

Of course, fictitious or imaginary needs are not needs within the
meaning of the Convention. But provided that the needs in ques-
tion are genuine needs of the enterprise, it would be contrary to
the letter and spirit of the clause to impose other conditions or limi-
tations. It is certainly therefore inadmissible only to take into ac-
count needs on which the very existence of the enterprise is depend-
ent; but it is also inadmissible to exclude temporary needs, if
this temporary character is not incompatible with the notion of the
subserviency of a rural estate, which could hardly be absolutely
momentary ; lastly, future needs cannot be ignored, since it is not
only legitimate but necessary for every industrial undertaking to
provide in good time for future requirements. Consideration of
future requirements is so closely bound up with the life of enter-
prises that the Court can attach no importance to the argument
to the contrary which the Respondent has endeavoured to draw
from the words ‘‘shall be considered.... as forming part of the
undertakings the needs of which they may serve”. In the Court’s
opinion, this is merely an abbreviated form of expression which
is in no way intended to limit the natural meaning of the
language used in the first part of the clause and which determines
its true scope.

As regards the nature of the needs referred to in Article 9, § 3,
paragraph 2, the examples added between brackets—“dairy
farming estates, timber raising estates, etc.’””—show that they may
differ widely and also that the economic and social needs of the work-
ers are to be taken into account, as well as the technical require-
ments of the enterprise as such: Moreover, these are only exam-
ples, probably selected by reason of their especial importance under
the industrial and social conditions prevaleut in Upper Silesia, to
facilitate comprehension of the principle laid down. Yet other
uses of estates designed to ameliorate the living conditions of
workers and employees of an enterprise are also covered by the
clause: for instance estates may be utilized for the production
of meat or other foodstuffs, for the construction of workers’ houses
or as allotments.

On the other hand, it would hardly be justifiable to argue from
the fact that the examples added within brackets in the text of the
Convention only cover farming and timber-raising, that the mere
possession of the surface, without devoting it to agriculture, cannot
JUDGMENT No. 7. — POLISH UPPER SILESIA 51

enter into account. The decisive words in this connection are :
“rural estates which are principally devoted, etc”. Uncultivated
or uncultivable lands are certainly rural estates just as much
as cultivable lands ; if in actual fact they are devoted to the required
purpose, they also fall within the scope of Article 9, § 3, paragraph 2.

The Court in the last place feels called upon expressly to state
that it is obvious that an opinion can only be formed concerning
the needs referred to in this clause in relation to the conditions
peculiar to Upper Silesia.

. + + +

It is in the light of the foregoing considerations that the factors
of the so-called question of subsidence must be determined from a
general standpoint. The prejudice sustained under this heading,
which is directly or indirectly caused by the possibility of the col-
lapse or subsidence of the surface, may result either from the
necessity of not completely exploiting seams in order to avoid dam-
aging the surface, or from the obligation to indemnify its owner ;
such prejudice has greater or less economic effects according to the
nature of the soil and the manner in which it is used. The Court
will, in connection with certain particular cases, consider more in
detail the character of such prejudice and its consequences, it being
understood that for subsequent cases the Court may refer to explan-
ations given in regard to previous cases.

The German Government has pointed out that mine-owners in
Upper Silesia have adopted the system of securing for themselves
possession of the surface in order to protect themselves from the
economic consequences of subsidence which appear to be partic-
ularly serious and frequent. in this mining area owing to the geolo-
gical conditions peculiar to it. This Government regards that cir-
cumstance as constituting a devotion of the surface to the needs of
the mining industry. |

The Polish Government has not denied that it has generally been
by nieans of the acquisition of lands that the economic consequences
of subsidence or the possibility of prejudice resulting therefrom have
been avoided in Upper Silesia. It argues however that ownership
of the surface is not now absolutely necessary for this purpose,
because modern technical knowledge has introduced processes
which enable any damage to the surface to be avoided.

7
JUDGMENT No: 7. — POLISH. UPPER SILESIA 52

In the Court’s opinion, the Polish Government’s contention does
not affect the fact that possession of the surface may fulfil a need of
the mining industry ; it merely establishes that possession is not in
every case the only means of satisfying this need. This amounts to
saying that possession of the surface with a view to protecting the
undertaking against the economic consequences of subsidence is not
in the nature of a necessity. But, even if this were correcta point
which the Court need not decide—Article 9, § 3, paragraph 2, does
not, as has already been stated, require that the subserviency of a
rural estate to the needs of an undertaking should be in the nature of
a necessity. If the method consisting in securing ownership of the
surface is in fact employed and if the state of subserviency exists,
Article 9, § 3, paragraph 2, is applicable ; the choice between several
possible methods of satisfying the same need must be left to the
owner of the enterprise himself.

It appears from the explanations given by the expert witnesses
heard by the Court in accordance with the Order made on March 22nd,
1926, that the employment of the methods to which the Polish
Government alludes cannot wholly prevent the subsidence of the
surface, but can only diminish its consequences. The method which
consists in introducing a mixture of sand and water into the cavities
resulting from coal extraction is moreover very costly and requires
extensive installations. Generally speaking, therefore, it can only
be employed in circumstances in which it is especially important to
diminish and retard subsidence or to work seams the thickness of
which only allows them to be worked in slices.

Again, it appears from explanations furnished on the same occa-
sion that it is of the greatest importance to mining enterprises to have
the surface at their disposal in order, amongst other things, to avoid
its being used in a manner which would aggravate the economic
consequences of collapse or subsidence. Account must also be taken
of the danger that the owner of the surface may speculate on the
compensation to be obtained from the enterprise by using the land
in a manner calculated to justify very heavy claims.

Furthermore, it should be observed that damage resulting from
subsidence does not exclusively occur on portions of the surface
situated immediately above coal seams which have been or are being
worked, but also extends to the surroundings where the surface
JUDGMENT No. 7. — POLISH UPPER SILESIA 53

suffers disturbances which involve an obligation to indemnify the
owners.

2.

THE INDIVIDUAL CAUSES OF ACTION.
(a) Count Nikolaus Ballestrem.

As regards the estates of Count Nikolaus Ballestrem, whose capa-.
city as a German national has not been disputed, the official notice
published in the Monitor Polski of December 31st, 1924, indicates
that the notice applies to the ““Ruda and Neu-Ruda estates, situated
. in the district of Swietochlowice, of an area of 320 hectares”. This
area does not represent the whole extent of these estates but only .
the parts farmed by the owner himself, plus 15 hectares of uncult-
ivable land.

It appears from maps and other evidence produced that all the
lands covered by the notice are situated over mines owned by Count
Ballestrem or mines of which he is co-proprietor.

The Applicant has made two objections to the expropriation of
Ruda and Neu-Ruda. In the first place, a principal objection,
‘based on the fact that the estates in question completely cover mines
belonging to Count Ballestrem or to associations (joint owners, in
this case Gewerkschaften) to which he belongs ; and, in the second
place, a subsidiary objection based on the circumstance that the
estate is farmed as a dairy farm for the benefit of the workers. The
Applicant has deduced from the topographical coincidence of the
surface and the mining concessions that the former is, owing to
subsidence, essential to the working of the mines underneath and
that the principle laid down in Article 9, § 3, of the Convention should
be applied. This contention has been supported by the following
consideration : the economic consequences of such damage, which
are now averted because the ownership of the surface belongs to
Count Ballestrem, would come into play and be most harmful to the
interests of the enterprise if this surface were taken from him by
expropriation and fell into the hands of a third party.
JUDGMENT No. 7. — POLISH UPPER SILESIA 54

Throughout the written and oral proceedings, the Respondent
has only opposed the main objection by arguing that there is no
longer any occasion for damage by subsidence to occur. In regard
to this question, the Court refers to the argumentation set out above.
But the Court has to consider the question from the two following
standpoints :

(1) Are the lands in question, covering mines belonging to
Count Ballestrem’s patrimony, principally devoted to serving the
needs of the enterprise in view of the possibility of subsidence ?

(2) Can the fact that Count Ballestrem, owner of the surface,
is not sole owner of all the mines covered by the lands in question,
deprive the objection raised of its force ?

From the complementary information furnished by the Parties
in pursuance of the Order of March 22nd, 1926, the Court has been
able to deduce, with special regard to the present case, that, in the
estates of Ruda and Neu-Ruda, a need to possess the surface above
mining concessions exists owing to: (1) the geological identity of
the land on which the. Ballestrem estates are situated with the
remainder of the Upper Silesian mining district, a fact which renders
applicable to it the reasons already set out in general terms ;
(2) the existence in the Ruda and Neu-Ruda mines of coal seams
of great size, and of seams at a short distance below the surface,
seams the working of which always has an effect upon the surface ; (3)
subsidences which have already actually occurred in the woodlands
of Ruda ; (4) the exact coincidence of the estates belonging to Count
Ballestrem and the mining concessions, which coincidence is con-
firmed by the maps submitted to the Court, and which the Respond-
ent has not disputed ; (5) the fact that the lands affected by the
notice do not form an estate (or portion of an estate) characterized
by geographical continuity and situated in one part only of the prop-
erty, but consist of parcels separated from each other and distrib-
uted over the whole extent of the property, a circumstance which
would be calculated to hamper communication between the other
parts of the property and would therefore render exploitation
difficult.

The evidence of the expert witnesses has also proved, in regard
to the present question, that a portion of the area covered by the
notice had been bought by the mining undertaking precisely in view
of subsidence, a thing which would never have occurred in a well-
JUDGMENT No. 7. — POLISH UPPER SILESIA 55

managed concern, unless it were confronted with a real probability
of actual prejudice by subsidence.

The second standpoint from which the Court must consider the
question relates to the fact that Count Ballestrem is only co-pro-
prietor of some of the mines below the surface of his estate. Does
this circumstance render paragraph 2 of § 3 of Article 9 inapplicable?

The three mines in question are those belonging to mining com-
panies of the type known as Gewerkschaften alten Rechts, which do not
possess a legal personality. Count Ballestrem owns, in two of these
mines, the majority of the shares, in the third one half of them. He
has the principal interest and the controlling influence in them. The
great majority of the mining shares belonging to him are included
in his entailed property, which also embraces the estates in question.

In these circumstances, it is clear that a third Party who has
nothing to do with the concern and Count Ballestrem as a co-pro-
prietor of it, cannot be regarded as on the same footing. The
former will never have any intérest in husbanding the profits of the
concern, but will rather seek to turn to his own profit, even to the
detriment of the mine, the fact of his ownership of the surface. The
latter, on the contrary, would.always have in view the fact that any
injury or any new expense inflicted on the mine must necessarily
affect his own ‘interests as co-proprietor. In the present case, it
is Count Ballestrem who will be the first and greatest sufferer from
any injury done to the concerns.

As regards a part of these enterprises, Count Ballestrem has
linked them—an indisputed fact—with mines belonging solely to
him, by means of a contract for their expioitation concluded in
order to ensure the satisfactory working of the mines belonging to
these concerns, which mines are not easily accessible except by
way of the Brandenburg mine which belongs to the Count. But,
according to one of the clauses of this contract, the Count is respons-
ible for damage by subsidence, that is to say, is alone, from the
point of view of the present question, in the position of owner.

The Court is of opinion that the fact that Count Ballestrem is
only co-proprietor of certain of the mines covered by his estate does
not render paragraph 2 of § 3 of Article 9 of the Convention inap-
plicable to the lands in respect of which notice has been given, and
that, by reason of subsidence, these lands are principally devoted to
JUDGMENT No. 7. — POLISH UPPER SILESIA 56

serving the needs of the Count’s enterprises. It considers, therefore
that the objection taken by the Applicant to expropriation is well-
founded.

In these circumstances, there is no need for the Court to consider
in detail the subsidiary objection taken by the Applicant, which
relates to the character of the farming conducted at Ruda and
Neu-Ruda as dairy farming within the meaning of the Geneva
Convention. The Court will confine itself to stating that it regards
this character as sufficiently established by the evidence submitted
on this point. Furthermore, it has formed the opinion, on the
basis of the allegations of the Applicant which have not been suc-
cessfully refuted by the Respondent, that this dairy farming is
principally devoted to serving the needs of the working and other
population connected with the industrial concerns of Count
Ballestrem.

(b) The Giesche Company.

The registered office of the Giesche Company (Giesche Spolka
akcyjna) is at Katowice. It was founded in 1897 by the Bergwerks-
gesellschaft Georg von Giesche’s Erben of Breslau. To this new Com-
pany were transferred in March 1922 all mines of the Georg von
Giesche’s Erben Company situated in the territories allotted to. Po-
land, and at the same time the old name of the Company “Georg von
Giesche’s Erben’’, which appears in the notice and in submission
No. 3 of the Application, was changed to ‘‘Giesche’’ Company, a
fact which is mentioned in the Case of the Applicant and has not:
been disputed. It appears from the documents of procedure that a
general manager of German nationality presides over the managing
committee of the latter Company; that five of the seven members of
the “board of control” of the Company are also German nationals ;
that all the shares of the Company belong to the ““Bergwerksgesell-
schaft Georg von Giesche’s Erben” which has its registered offices
at Breslau and the German control of which has not been disputed.
The Giesche Company at Katowice must therefore, in the Court’s
opinion, be regarded as a “‘company controlled by German natio-
nals” within the meaning of the Geneva Convention. Moreover,
there is no difference of opinion between the Parties on this point.

‘ The following lands belonging to the Giesche Company have been
JUDGMENT No. 7. — POLISH UPPER SILESIA 57

designated in the official announcement regarding expropriation
published in the Monitor Polski of December 30th, 1924 :

“The portions which have not been reafforested and which are
not utilized for industrial purposes of the landed property situated
in the district of Pszczyna, in the communes of Mokry, Laziska
Gorne and Jedlina, in the district of Rybnik, in the communes of
Baranowice and Kleszczow, in the district of Swietochlowice,
in the communes of Nowy Bytom, Brzozowice, Kamien, Wielka
Dabrowka, Brzeziny and Wielkie Hajduki, in the district of
Katowice, in the communes of Antoniow, Bogucice, Brynow,
Dabrowka Mala, Giszowiec, Janow, Myslowice, Rozdzien,
Szopienice and Zaleze and in the city of Katowice.”

The Parties have made divergent statements in regard to the area
of the lands covered by the notice. The official announcement
published in the Monitor Polski mentions a total area of
3150 hectares, a figure which, according to the Polish Government,
refers to the area of the whole of the property of the Company
{including property not affected by the notice). The German Govern-
ment has stated that the wording of the nctice served on the
Company and also the Polish and German texts published in the
official Polish gazette, could only be taken to mean that the figure
indicated referred merely to the property which it was intended to
liquidate, but that this figure corresponded neither to the extent of
the rural estates of the Company, which did not exceed 4730 hec-
tares, nor to the total area of the property which amounted to
4218 hectares.

The divergence in regard to the total area shows that there is
in this case an irregularity in the notice. Apart from the question
whether the lands covered by the notice are or are not liable to
expropriation——-a question which will be examined subsequently —
the Court considers that the figure given in the notice seems to be
erroneous and, at all events, renders uncertain the identification
of the portions subjected to expropriation.

It should be added that, by a letter dated March roth, 1926, the
Agent of the German Government has communicated to the Court
three maps of the rural estates of the Giesche Company, in regard to
which the Polish Government has submitted no observations.

The Parties have made statements in regard to each of the
JUDGMENT No. 7. — POLISH UPPER SILESIA 58 ;

Company’s estates individually, namely, the estates situated at
Katowice, the estates of Mata Dabrowka, Zaleze (including Dolne
Hajduki), Jedlin, Mokre, Baranowice and Gieszowiec (Giesche-
wald). The Court therefore will consider separately the case of each
of these estates.

(1) Properties at Katowice.

It has been stated above that the Agent of the Applicant
Government, in reply to a question which the Court had decided
to put to him, requested the Court to give judgment in regard to the
properties of the Giesche Company at Katowice, in conformity
with the submission of his Government and the declaration of the
representative of the respondent Government. .

The Court records that the withdrawal of the notice is henceforth
an established fact and that the properties above mentioned are
therefore once and for all immune from any possible expropriation
under the terms of Article 15 of the Geneva Convention.

(2) The Zaleze estate (including Dolne Hajduki).

According to the applicant Party, the total of this estate is
482 hectares, of which 135 hectares is forest land and 347 hectares
agricultural land ; the Respondent has not mentioned any figures
during: the proceedings and none is given in the official announce-
ment constituting the actual notice. This document in fact con-
fines itself to indicating the portions of the estate which it is intend-
ed to expropriate by a vague expression—which refers moreover
to the whole of the estates of the Giesche Company—to the effect
that the lands in question are “those which have not been reafforested
and are not used for industrial purposes”. It does not define the
extent of the Zaleze estate any more than that of the other estates
covered by the notice.

The Applicant has raised a principal objection to the expropria-
tion of the lands in question and also a subsidiary objection.

The principal objection is based on the contention that the whole
of the estate is situated above the Company’s mines. The justice
of this contention is established without possible doubt by the maps
above mentioned. Moreover, the Respondent has not disputed
this contention ; he has confined himself to maintaining that the
fact alleged is not relevant because modern methods of mining
JUDGMENT No. 7. — POLISH UPPER SILESIA - 59

enable damage to the surface to be avoided. This argument has,

- however, already been rejected by the Court. The contention there-
fore on which the first objection raised by the Applicant is founded
may be regarded as an established fact upon which the Court may
base its judgment.

The facts on which the subsidiary objection are based also seem
to the Court to be established. These facts are that the greater
part of the agricultural land, the total area of which is 347 hectares,
is leased to workmen, the remainder (‘‘a negligible portion”) being
farmed directly by the Company. This farming, which, moreover,
is carried on at a loss, is conducted to supply the workers with
foodstuffs and for the production of hay and straw for the pit ponies.
The Respondent. has not disputed these facts. He has confined
himself to saying, in the Counter-Case, that the Zaleze and Dolne
Hajduki estates constitute typical rural properties a portion only of
which (the extent of this portion is not indicated by the Respond-
ent) is leased to workers for short periods. To this argument it has
been subsequently added that these estates, being purely agricul-
tural, are ipso facto subject to expropriation under Article 12, para-
graph 1, of the Geneva Convention.

The Court cannot accept this view. In its opinion, the facts
advanced by the Applicant, which have not been disputed by the
Respondent, must, as has already been said, be regarded as estab-
lished. Moreover, the present utilization of these lands for the
benefit of the workers and for the production of forage for the pit
ponies is sufficient to cause them to be regarded as principally
‘devoted to the needs of the mining undertaking, as these needs
have been construed by the Court.

Consequently, both the principal and the so-called subsidiary
objection must be regarded as well-founded.

(3) The Jedlin estate.

According to the Case of the German Government, the total area
of this estate is 589 hectares, of which 283 hectares is forest land,
the remainder being agricultural land. The documents of the
‘written procedure on the Polish side mention no figures, nor has
this Government furnished any during the oral proceedings.

It is established that the untimbered part of the Jedlin estate is
8
JUDGMENT No. 7. — POLISH UPPER SILESIA 60

now utilized for agricultural purposes. It appears, however, from
statements made in Court by the applicant Government, which
have not been disputed by the Polish Government, that this land
is worked at a considerable loss.

In support of his objection to expropriation, the Applicant alleges
in the first place that this estate has been acquired, in spite of its
lack of fertility, with a view to the use of the sand found upon it
for the requirements of the Giesche mines. At the present time
the sand is not yet being worked and the statements of the Parties
differ as to the probable time when a beginning will be made. It
must, however, be regarded as certain that the Jedlin estate will
at some future time be effectively devoted to the needs of the
Giesche Company, having regard to the fact that sand in large
quantities is used for the hydraulic filling of mine workings.

In reply to the Applicant’s contention, the Respondent has
argued that a future use does not come within the scope of Article 9,
§ 3, of the Geneva Convention ; the Court, however, as has already
been stated, cannot regard this construction as sound. Conse-
quently, it considers it as established that the Jedlin estate, as
regards the principal purpose served by it, fulfils the conditions.
laid down in the above-mentioned article. In these circumstances,
it appears superfluous to devote attention to the present purpose
-served by that part'of the estate which is utilized for agriculture.

(4) Mokre estate.

According to the statements made during the written proceedings,
the area of the Mokre estate is 717 hectares, of which 316 hectares
is forest land and 401 hectares agricultural land. It appears from
the maps before mentioned that the Mokre estate is situated over
mines or coal seams. À portion of the property is devoted to
dairy farming. |

On the basis of these facts, the Applicant in the first place takes
objection to the expropriation on the ground that the estate serves
the purpose of safeguarding the owner against the consequences of
subsidence ; in the second place, he takes objection on the ground
that the untimbered lands are at present utilized as a dairy farming
estate devoted to supplying the population dependent on the
concern. The situation thus indicated is similar to that of the
Ballestrem estate and the arguments opposed by the Respondent.
to the contentions of the Applicant are the same.
JUDGMENT No. 7. —- POLISH UPPER SILESIA 61

After hearing the evidence given by expert witnesses in pursuance
of the Order made on March 22nd, 1926, the Court is in a position
to recognize the justice of the objections taken by the Applicant.
It has, in fact, been proved that the southern part of the mining
concessions is covered by the surface lands belonging to the Giesche
Company ; and that the seams already worked or to be worked are
at a short distance from the surface, a fact which clearly demon-
strates that this surface is needed by the concern and, at the same
time, the serious danger of subsidence. Throughout the remainder
of the concession, borings made have shown the existence of seams
which will be worked in their turn. Furthermore, a document
filed by the Agent of.the Applicant at the sitting of April 13th,
1926, which document has not been disputed, decisively establishes
the fact that the purpose served by the estate is as the Court
understands it. The document in question is a letter sent to
the Council of Representatives of the Georg von Giesche’s
Erben Company, dated October roth, yor. At that period
steps were being taken to acquire the Mokre estate with a
view to the future working of the mines situated on this estate, and
in order to avoid the necessity of having, later on, when the mines
were being worked, to acquire the same lands at a much higher price.
It appears therefore that the object of the purchase of the Mokre
estate was to avoid a speculation which would injure the interests
of the concern.

As regards the subsidiary objection taken by the Applicant to
the expropriation of the estate, it will suffice to refer to what has
been said in this respect in regard to Count Ballestrem’s estate.

(5) The Baranowice estate.

The total area of this estate is, according to the figures furnished
by the Applicant, which have not been disputed, 1072 hectares.
Different figures have been furnished by the two Parties in regard
to the extent of the forest lands of this estate ; according to the
German Government the area of forest land is 625 hectares, whereas
the Polish Government observes that the Company concerned has
given 550 hectares as the area under timber.

It should be recorded that the Respondent, in his Counter-Case,
has stated, in order to define the meaning of the words “portions
not reafforested and not used for mining operations”, that the lands
JUDGMENT No. 7. — POLISH UPPER SILESIA 62

employed for industrial purposes have been secured beforehand,
by the notice itself, from any possible expropriation and that this
also applies as regards wooded lands. This construction; however,
only applies to those wooded areas which, under Article 12, para-
graph 2, are not to be regarded'as forming part of large agricultural
estates and which therefore are not, with them, liable to expropria-
tion. It is therefore important to ascertain the extent of these
wooded areas in relation to the total area of the estate.

The Polish Government has contended several times during the
proceedings that the exception provided for in Article 12 applies
to the whole of the wooded portion of the Baranowice estate. This
portion would therefore, in its opinion, be liable to expropriation
just as much as the agricultural land. Thus, the whole estate—-
contrary to what is stated in the notice—would be liable to
expropriation. . |

The Polish Government seems to arrive at this fresh submission on
the basis of a letter of the Giesche Company dated January
Igth, 1925 ; a passage in this letter, according to the construction
placed upon it by that Government, indicates that the wooded and
agricultural portions of the Baranowice estate are so closely con-
nected that if the latter were expropriated, the former could
no longer be profitably exploited.

The Applicant; however, has disputed this construction of the
Respondent. Citing the complete text of the above-mentioned letter,
he has maintained that the Company’s statement should rather be
understood in the opposite sense. This statement, indeed, contains
amongst other things a passage to the effect that “all timber
obtained from our estates in so far as it is not immediately used
for agriculture, is distributed to our industrial concerns; in particular
Baranowice. Owing to the close connection between agriculture
and industry, the expropriation of our estates would endanger the
exploitation of our factories and would inevitably be harmful to
the national economic system.” This passage does not indicate
that the possibility of expropriating the agricultural part justifies
the expropriation of the wooded portion.

The Applicant, whilst recognizing the close connection existing
between the two parts of the Baranowice estate, therefore lays
stress on the preponderating importance of the timbered portion
which makes this estate essentially à timber-producing property
JUDGMENT No. 7. — POLISH UPPER SILESIA  —s_ 663

acquired as such for the production of pit props. In reply to
this contention the Respondent has merely observed that the
object for which an estate is acquired is irrelevant from the point
of view of the application of the provisions of the Geneva
Convention.

It should moreover be noted that the Applicant has stated
that the timbered portion is utilized for the needs of the mine
(pit props) and that this statement has not been disputed by the
Respondent. The Court therefore regards it as proved, for the
purposes of the suit, that the Baranowice estate fulfils the con-
ditions of Article 9, § 3, paragraph 2, owing to the exploitation
of the timber.

The same conclusion is indicated as regards the untimbered
portion, because this land, which is devoted to agriculture, supplies
foodstuffs for the workers and hay, straw, etc. for the pit ponies.

The German Government has, moreover, added in its Reply that
a large part of this land, when still under German rule, was made
available for the execution of the agrarian reform ; that contracts
were long ago concluded with the communes with this end in
view ; that the farmers are already in possession of their lands and
that only the Auflassung remains to be granted. In reply to
these statements, the Respondent has offered no argument, either
in his Rejoinder or in the course of the oral proceedings. Now these
statements, in so far as they concern the portions of the estate to
which they apply, would have the effect of rendering applicable
Article 9 to the exclusion of Article 12 of the Geneva Convention ;
they would therefore constitute circumstances tending to confirm
the conclusion arrived at by the Court on other grounds.

(6) The Giszowiec (Gieschewald) estate.

According to the statements made before the Court by the two
Parties, the total area of this estate is r120 hectares. This estate,
according to the maps before mentioned, coincides throughout its
extent with mining concessions belonging to the Giesche Company.

It contains an untimbered portion which, according to the
figures furnished by the respondent Government, includes
244 hectares of agricultural land.
JUDGMENT No. 7. — POLISH UPPER SILESIA. 64

On the other hand, it is established that the greater part of the
estate of Giszowiec (according to information furnished by the
respondent Government, which has not beer disputed, 876 hect-
ares) was wooded. The timber has, according to the Parties’
statements, been destroyed by fire and the work of reafforestation
begun by the Company is beset with difficulties. In the Court’s
opinion, this latter fact does not deprive the land of its essential
character as a timber growing estate, upon which no appreciable
influence can be exerted by the circumstance that in the same estate
there is a cultivated portion, the extent of which in proportion to
the total area is small.

It should also be observed that the word “essentially” used
by the Applicant (“essentially timbered land’’) does not neces-
sarily mean “exclusively”, but rather contemplates the fact of
being “principally” utilized, throughout the larger and more
important part, in a certain manner. Now this is precisely the
meaning of the sentence which, in Article 9, § 3, paragraph 2,
determines the nature of the purpose which renders immune
from expropriation by the Polish Government certain rural estates.
Moreover, the part described as agricultural is to a considerable
extent, as has been proved by one of the maps handed in,
used for the construction of workmen’s houses and for allotment
gardens. This use of the land undoubtedly comes within the
conception of devotion to the needs of the enterprise, as established
by the Court.

For all these reasons the Court is of opinion that the Giszowiec
estate fulfils the conditions of Article 9, § 3, paragraph 2, of the
Geneva Convention.

(c) Christian. Kraft, Prince of Hohenlohe-Ochringen.

The rural estates belonging to Christian Kraft, Prince of Hohen-
. lohe-Oehringen are situated, according to the official announcement
regarding the notice, in the communes of Bytkow (formerly
Welnowiec) and Michalkowice, in the district of Katowice ; accord-
ing to the same announcement, the area of these estates is
361 hectares.
JUDGMENT No. 7. — POLISH UPPER SILESIA 65

The German nationality of the owner must be regarded as estab-
lished.

According to the Case of the German Government, the estates
covered by the notice form part of the Prince’s entailed property,
and he has leased them to the Hohenlohe-Werke Company.

The Application mentions the estates of Prince Hohenlohe-
Oehringen amongst those principally devoted to serving the needs
of industrial undertakings and for this reason immune from expro-
priation. under Article 9, § 3, of the Genéva Convention. It
should be stated that neither in the Application nor in the oral or
written proceedings has any information been furnished as to the
needs in question. The mere assertion of the existence of a contract
of lease in favour of an industrial concern, a contract the object and
duration of which are unknown to the Court, does not enable it to
decide whether Article 9, § 3, is applicable or not.

The terse reference, without any details, to subsidence, made by
the German Agent in his oral reply, would, even apart from the
question whether this argument had been put forward in sufficient
time, not suffice to prove the assertion made in the Application. The
Respondent has stated that he is not in a position to reply to this
argument which was not put forward during the written proceedings.

_ In these circumstances, therefore, the Court can only dismiss the
Applicant’s claim, for lack.of sufficiently substantiated statements.

(d) The Vereinigte Kénigs- und Laurahiitte Company.

The lands affected by the notice and belongiag to the Vereinigte
Konigs- und Laurahütte A.-G. für Bergbau- und Hiittenbetriebe of
Berlin, have been described as follows in the Monitor Polski of
December 30th, 1924 : |

“The portions, which are not reafiorested and not used for indus-
trial purposes, situated in the district of Rybnik, in the communes
of Czerwionka, Czuchow, Dôbiensko, Stare, Kamien and Leszezyny,
in the district of Swietochlowice, in the communes of Chorzéw,
Wielka Dabrowka, Kroleska Huta, Lagiewniki and Nowy Bytom, in
the district of Katowice, in the communes of Antoniow, Bangow,
JUDGMENT No. 7. — POLISH UPPER SILESIA 66

Maciejkowice, Przelajka and Siemianowice and in the city of
Katowice.”

The total area of these estates is, according to the Polish Govern-
ment, 1984 hectares. This figure has, however, been disputed by
Germany.

The Agents of the Polish Government, at the hearing of
February 8th, 1926, stated that the notice of intention to expropriate
the lands situated at Katowice had been withdrawn, since the Com-
pany did not appear to possess any land in that town ; the Agent of
the German Government noted these statements. Furthermore, it
appears from communications made to the Court that a rectifica-
tion in respect of these lands, establishing their non-liability to
expropriation, was also published in the Monitor Polski of
January 26th, 1926. The Court therefore is satisfied that the notice
of intention to expropriate these properties has ceased to exist.

The Applicant Government has indicated in its Case the propor-
tion of forest land, parks and ‘gardens, land unsuitable for cultiva-
tion, etc., included in the estates of the Company, dividing the latter
into three groups (the properties of Siemianowice-Bangow-Przelajka,
the properties of Maciejkowice-Antoniow and the properties of
Czerwionka) ; the Respondent, whilst disputing the statements of
the Applicant in this connection, has not made any observations
regarding the individual figures indicated. At the hearing of
February 5th, the Agent of the German Government submitted to
the Court two maps of the landed properties belonging to the Ver-
einigte Kénigs- und Laurahütte Company, in regard to which the
representatives of the Polish Government have made no observa-
tions. It should be added that each of the properties mentioned
above constitutes a large estate within the meaning of Article 12,
paragraph 1, of the Geneva Convention.

It appears from the statements made in Court on behalf of the
applicant Government—which have not been disputed—that the
landed property of the Kénigs- und Laurahütte Company is in
the main situated over the Company’s mines.

Again, it results from the documents of the suit that the
produce of the agricultural lands is, at least in part, used to |
provide foodstuffs for the workers and to supply the needs of the
industrial undertakings.
JUDGMENT No. 7. — POLISH UPPER SILESIA 67

The registered offices of. the Company are at Berlin. It is,

furthermore, established that three of the five members of the
Committee of Management are Polish nationals and that the “Board
of Control”, consisting of eighteen members, includes eleven
members of German nationality.
. As regards the distribution of the shares, the Applicant states
that 80 % belong to four persons, subjects of countries other than
Germany ; he has not, however, indicated the period at which this
distribution existed. The four persons in question are: M. A.
Weinmann, of Aussig, a Czechoslovak national ; M. Bosel, of Vienna,
an Austrian national, M. Askenazy, of Warsaw, and Prince Henckel
von Donnersmarck, of Neudeck, Polish nationals. The Respondent
has not disputed that the situation in this respect is in fact as above
stated ; he has confined himself to the contention that no importance
can be attached to the possession of bearer securities, since it is
impossible to ascertain in whose hands they may be at a given
moment. He has added that the circumstances indicated in the
Case may possibly refer to the position at the time when the Case
was prepared, but certainly not to that which existed at the decisive
dates mentioned in Article 12. It does not appear that Poland,
in the exercise of the right which is granted her under Article 19
of the Geneva Convention, has taken steps to ascertain by whom
the Company was really controlled at the decisive dates. According
to the reports upon the administration of the Company, two of the
four persons indicated as principal shareholders were on the Board
of Control of the Company during the year 1g2I-1922 in the course
of which the transfer of sovereignty took place, whilst all four
have been upon it since 1923-1924. The Court is of opinion that
these indications justify the conclusion that the great majority of
the shares was in the hands of nationals of countries other than
Germany, at all events at the second of the decisive dates mentioned
in Article 12, paragraph x.

*
* *

If the data furnished by the Applicant with regard to the com-
position of the management and of the Board of Control and also the
nationality of shareholders at the decisive moments contemplated
by Article 12 of the Geneva Convention are not disputed, there is,

9
JUDGMENT No. 7. — POLISH UPPER SILESIA 68

“on the other hand, a difference of opinion as to the relative import-
ance to be attached to the various organs of the Company, in which
German and non-German nationals are represented in different
proportions. The opinions of the Parties also differ as to the
possibility of taking into account the possession of bearer securities.
These are the points on which the argument has mainly borne.

As concerns the doubts expressed by the Respondent with refer-
ence to the facts in regard to the possession of the shares at the
decisive dates mentioned in Article 1z of the Geneva Convention,
the Court has stated the reasons for which it holds that, for the
purposes of the present suit, it has been proved that, at all events at
the time when notice was given, the majority of the shares was in
the hands of nationals of countries other than Germany. Since
the application of Article 12 is dependent on the property to be
expropriated being owned by German nationals or by coripanies
controlled by German nationals on April 15th, 1922, and at the date
of the notice, it is sufficient for the purposes of immunity from
expropriation that this condition should not have been fulfilled at
one of the decisive dates.

Relying mainly on the argument that the Kénigs- und Laura-
hiitte Company is not a company controlled by German nationals,
the Applicant has denied that the estates of this Company fall
within the scope of Article 12 of the Geneva Convention. The
Respondent, on the other hand, contending that control is exercised
by German nationals, considers that the article in question is
applicable in this case.

The Geneva Convention does not, any more than the Treaty of
Versailles, define the factors which constitute control and the exist-
ence of which may involve the liquidation of a company’s property.
The Court is of opinion that the conception of control, in the
Geneva Convention, is an essentially economic one and that it
contemplates a preponderant influence over the general policy.
Criteria of an external nature, such as the situation of the registered
offices, the place of foundation, the legislation under which the
Company has been formed, etc., which have long been applied,
without any relation to the question of liquidation, by the legis-
lation and jurisprudence of the different countries, seem to have
been replaced in the Geneva Convention, and in so far as concerns
JUDGMENT No. 7. —- POLISH UPPER SILESIA 69

the liquidation régime, by a more elastic criterion which enables,
in spite of appearances, physical persons of a particular nationality
to be reached. The régime is therefore based on the nationality —
of the citizens of the State subjected to liquidation, who are owners
or beneficiaries of the property, rights and interests liable to
liquidation.

Seeing that the conception of “control” is an essentially economic
conception, decisive importance must not be attached to the func-
tions which, by law or under their Statutes, are performed by certain
organs, such as, for instance, the Boards of Control of Limited
Companies; such functions must not be taken as a rigid legal
criterion. On the contrary, each case must be considered on its
individual merits. There is, however, in the conception of control
adopted in the Geneva Convention, one rigid juridical factor,
namely, the nationality of the physical persons who exercise control.
There is no occasion to consider what are the tendencies or connec-
tions of a person of a particular nationality.

The two organs of the Company which, according to the opposing
contentions of the Parties, enter into consideration from the point
of view of control, are the Board of Control and the General Meeting
of Shareholders. Both of these organs in fact may, according to
the circumstances, exert a decisive influence. Nevertheless, regard
must be had, in the first place, to the shareholders, for, under Ger-
man law as well as under other systems of legislation, it is the
general meeting of shareholders which exercises the supreme power
of the Company. From the General Meeting, which is the consti-
tuent body, directly emanate the powers of the Board and, directly
or indirectly, those of the management. It is a well-known fact
that the acquisition of the majority of the shares is precisely the
means by which an interested person or group of persons may
seek to obtain control over'a concern. Though it is true that
the Board of Control may be regarded as possessing control in
the very common event of the shares being distributed amongst
a very large number of persons, to a great extent unknown to each
other, the position is entirely different if—as in the case of the
Kônigs- und Laurahtitte—80 % of the shares are in the hands of
four large shareholders, all members of the Board of Control, who
can exert their influence by means of their majority in the general
meeting and who, although in a minority, can in fact also do so .
in the Board of Control. In such circumstances it is not material
JUDGMENT No. 7. — POLISH UPPER SILESIA 70

if the Company’s Statutes, as in the present case, extend the
powers of the Board of Control beyond those fixed by law. The
Board remains, notwithstanding, responsible to the majority of the
shareholders. Although the Statutes provide that members of the
Board shall hold office for a period of four years and according to
a system of rotation, the legal stipulation to the effect that the
Board’s mandate may be revoked, at any time, by a majority of
three-fourths of the shares represented at a general meeting is main-
tained. Moreover, in the circumstances stated above, the majority
of the members of the Board of the Company now under consider-
ation is of Polish nationality.

The Respondent has, in the second place, argued that the Kônigs-
und Laurahiitte Company is a German “national” in virtue of the
undisputed fact that its registered offices are at Berlin, and that
consequently it is governed by German law.

The Court cannot share the opinion that these arguments in
the present case lead to the conclusion deduced from them by the
Respondent.

The Geneva Convention has adopted, as regards the expropriation
régime and in so far as companies are concerned, the criterion of
control ; this, however, does not prevent other criteria which might
be applicable in respect of the nationality of juristic persons from
possessing importance in international relations, from other stand-
points, for instance, from the standpoint of the right of protection.
Since the term “national” in the Geneva Convention generally
relates to physical persons, whose legal situation is determined by
the personal tie of nationality connecting them to a State, it is
hardly possible to extend this conception, without special reasons, to”
companies, even such as are juristic persons, with regard to which
a special conception—that of a “controlled company’’—has been
adopted.

Of course the law applicable to the Company by reason of the
fact of its registered offices being in Germany, gives the German
authorities judicial and other powers ; but it has not been argued
and there is no reason to suppose that these powers could have the
result of investing the authorities of the country in which the Com-
pany’s registered offices are situated with control, within the mean-
ing of the Geneva Convention.

The Court having thus rejected the applicability of Article 12,
JUDGMENT No. 7. — POLISH UPPER SILESIA 71

it is not necessary to consider the other circumstances put forward
by the Applicant with a view to proving that the estates in question
are not liable to expropriation.

(e) Baroness von Goldschmidt- Rothschild.

_ According to the announcement published in the Monitor
Polski of. December 30th, 1924, the Polish Government has the
intentiorf to expropriate the following estates belonging to the Baro-
ness Maria Anna von Goldschmidt-Rothschild, née von Friedländer-
Fuld : the landed properties situated in the district of Rybnik, in
the communes of Gorzyce, Belsznica, Jedtownik, Machlowice,
Maruzse, Moszczenica, Mszana, Olza, Radlin, Turzyczka, Wilchwy,
Wodzistlaw and Wodzistawski Zamek, amounting to an area of
1618 hectares.

Notice was not served personally upon the interested Party. It
has been stated above that the Polish Agent, at the hearing of
February 18th, 1926, reiterated the declaration made by the Polish
Government in its documents of procedure to the effect that the
estates in question would not be expropriated. The Agent of
_ the Applicant noted these declarations. The Parties are
therefore agreed as to the legal situation of the estates in question
which have been recognized to be immune from expropriation.

On the other hand, there is a difference of opinion between the
Parties in the sense that, according to the German Government,
the notice was irregular, failing personal service upon the person
concerned, whilst the Polish Government holds that notice has not
been given.

Article 15 of the Convention makes no special provision for the
form in which notice is to be served. The procedure adopted by the
Polish Government includes a notice served on the individual and
the publication of an announcement in the Monitor Polski.
This procedure seems indeed to fulfil the spirit of the Convention,
for, whilst it is certain that the owner must be directly informed
of the Government’s intention to expropriate his property, the
consequences which the notice is destined to produce, both as
regards the German Government (Article 23, paragraph 1), and as
regards third parties (Article 20), require that notice to the party
immediately concerned should be accompanied by certain measures
JUDGMENT No. 7. — POLISH UPPER SILESIA 72

of. publicity. It-should also be observed that, since the Monitor
Poiski is official in character, an announcement published therein
can hardly be regarded as having never been made, even if, in
the absence of other essential factors, it is unable to attain its end.

The justice of this observation is not affected by the fact that
subsequently the decision to give notice in respect of the estates of
the Baroness Goidschmidi-Rothschild was corrected, as has been
stated above. Nevertheless this correction which annulled the
notice, in so far as notice had been given, undoubtedly had the effect
of depriving the German Government’s Application in respect of
these estates of its object. The Court is satisfied that, in these
circumstances, the estates in question are once and for all immune
from any possible expropriation under Article 15 of the Geneva
Convention.

(f) Karl Maximilian, Prince of Lichnowsky.

The rural estates cf Prince Karl Maximilian Lichnowsky, in
respect of which notice has been given by the Polish Government,
are “portions of landed properties situated in the district of Rybnik,
in the communes cf Syrynia, with the estates of Grabowka and
Syrynia, in the communes of Lubomia, and the estate of Lubomia,
in the commune of Nichoczowy, with the estate of Nieboczowy, and
in the commune cf Ligota Tworkowska”’. According to the
official announcement in the Monitor Polski, the area of these
estates is 1930 hectares.

Prince Lichnowsky, who was a German national at the time
of the cominginto force of the Treaty of Versailles, by a declaration
dated January ist, 1922, a copy of which has been submitted to the
Court, opted for German nationality, in accordance with Article 84
of the Treaty of Versailles and the provisions of the German-
Czechoslovak Convention of June zyth, 1920, regarding questions
of nationality.

The only difference of opinion existing between the Parties in
regard to this case is in regard to whether the automatic acquisition
of Czechoslovak nationality by the Prince actually took place and,
if so, how this fact may be proved. If it is established, expropri-
ation is, according te the statements of the Respondent hiniself, out
of the question.

In the opinion of the Polish Government, proof of the acquisition
JUDGMENT No. 7. — POLISH UPPER SILESIA 73 :

of Czechoslovak nationality can only he established by means of a
certificate from the Czechoslovak Government recording the fact.

The Court cannot take this view

The Applicant, in his Case, has adduced a series of definite facts
which, if regarded as established, destroy any doubt as to the
applicability of Article 84 of the Treaty of Versailles and, conse-
quently, as to that of Article 17 of the Geneva Convention. Prince
Lichnowsky, in the document recording the exercise of his right of
option, declared that he was domiciled at Kuadulna (Kuchelna), a
locality situated in Czechoslovak territory. The fact that the
declaration of option did not encounter any objection on the part of
the Czechoslovak Government has not been disputed. Nor has it
been denied that the Czechoslovak authorities gave the Prince
permission temporarily to reside at Kudulna, under Article 12,
paragraph 3, of the Convention between Germany and Czecho-
slovakia.

Moreover, these data, furnished by the Applicant, relate, at least
in part, to matters of common knowledge ; Poland does not dispute
their accuracy, she merely asks for documentary proof:

The Court is entirely free to estimate the value of statements
made by the Parties. It considers that the fact that the Prince
was, at the decisive date, established in a territory recognized by
the Treaty of Versailles as forming part of Czechoslovakia, is suffi-
ciently proved by the statements made in the Case on the subject,
which have not been disputed; and by the Prince’s declaration,
dated January Ist, 1922, by means of which he opted for German
nationality in accordance with the terms of the German-Czecho-
slovak Convention.

Article 17 of the Geneva Convention is, therefore, applicable in the
case of Prince Lichnowsky.

(g) City of Ratibor.

The Polish Government, according to the official announcement
published in the Monitor Polski, has given notice of its intention
to expropriate the landed property situated in the district of Rybnik,
in the commune of Brzezie, belonging to the City of Ratibor.

It has been indicated that the area affected by the notice is
297 hectares. .
JUDGMENT No. 7. — POLISH UPPER SILESIA 74

At the hearing of February 5th, the Agent of the German
Government handed to the Court maps showing the estates of the
City of Ratibor situated in Polish Upper Silesia.

As regards the lands affected by the notice, the German Govern-
ment has contended that the area indicated being 297 hectares, the
Waldpark, a wooded estate used as a place of recreation for the
inhabitants of Ratibor, must be included ; this, in its opinion, would
be contrary to the provisions of the Convention. The Polish
Government, forits part, whilst admitting that the figure of 297 hect- .
ares is not perhaps absolutely correct, has denied that that figure
includes the Waldpark, which it contends is not included by the
notice. The Court considers, therefore, that these statements have
definitively established that the Waldpark is not liable to expro-
priation.

The Applicant denies that Article 12 of the Geneva Convention
is applicable to the City of Ratibor, which, in his contention, is
neither a “German national” nor a “company controlled by
German nationals” ; the Respondent, on the other hand, considers
that the City of Ratibor must be regarded as a ‘‘German national” or
as a “company controlled by German nationals”.

It is not possible to apply the conception of a “‘controlled com-
pany” to every kind of juristic person ; it would rather appear, in
the light of war-tinie legislation to which the régime of liquidation
belongs, that this conception refers more particularly to associations
with an economic purpose, there being, moreover, no necessity
to draw a distinction in this connection between associations which
merely constitute a contractual relation and those which possess a
distinct legal personality.

On the other hand, the conception of a “national” also covers,
in the Court’s opinion, communes such as the City of Ratibor. It
is true that, as has been explained in connection with the case of
the Kônigs- und Laurahütte Company, the term ‘national’ in the
Geneva Convention generally contemplates physical persons. But
a relation analogous to that which exists between physical persons
and a State, and which is called nationality, also exists, although in
a different form, in the case of corporations of municipal law.

A Prussian commune is a corporation on a territorial basis,
formed by the national inhabitants, upon whom municipal law
JUDGMENT No. 7. — POLISH UPPER SILESIA - 75.

confers the capacity of members of the commune. Generally speak-
ing, only nationals will take part in the administration of the
commune. Again, communes, outside their own sphere of activity,
also exercise functions as organs of the State itself ; they are sub-
ject to the control of the State authorities as regards both the activ-
ities which are directly incumbent upon them and those which
they undertake in virtue of powers delegated by the State. An
essential and necessary bond therefore unites the commune and the
State of which it forms part ; consequently, it is natural, from the
standpoint of the régime of liquidation, to assimilate such commun-
ities of nationals of a State to individuals who, precisely by reason
of their nationality, are, in so far as their property is concerned,
subject to the régime established for nationals of this State.

It follows from the foregoing that the commune of Ratibor falls
within the category of “German nationals’, within the meaning of
Article 12, paragraph ‘2, of the Geneva Convention. . The Applicant
has not disputed the agricultural character of those lands belonging
to the City of Ratibor in regard to which the Polish Government’s
intention to proceed to expropriation has not been abandoned.

(h) Godulla Company.

The estates belonging to the Godulla Company, in respect of
which the Polish Government has given notice of its intention
to proceed to expropriation, comprised, according to the Monitor
Polski, “the portions which are neither timbered nor used
for industrial purposes, of the landed property situated in the
district of Swietochlowice, in the communes of Nowa Wies,
Lagiewniki, Lipine, Orzegow, Godula, Nowy Bytom and Ruda, ~
in the district of Pszczyna, in the communes of Paniowy, Jaszlowice,
Zawada, Mokre, Ornontowice and Orzesze, in the district of
Rybnik, in the communes of Bujakow, Chodow and Paniowki.”

The two Parties agree in regarding the Godulla Company as a
“company controlled by German nationals” within the meaning
of Article 12 of the Geneva Convention.

The total area of the landed property of the Company, according
to the figures supplied to the Court by the Applicant Government,
is 3495 hectares ; on the other hand, the figure given in the official
announcement concerning notice of expropriation is 2411 hectares,

10
JUDGMENT No, 7. —- POLISH UPPER SILESIA 76

Fhe German Government, in its Case, has submitted to the Court
a table showing the area and use of all the estates of the Company
(entered in the land registers on 478 different pages) ; in regard to
this table the Polish Government, without going into details, has
made certain reservations. These estates have been treated by the
Respondent as forming two distinct groups, that of Orzesze and that
of Orzegow-Czarnylas.

At the hearing of February 5th, 1926, the Agent of the German
Government handed to the Court maps relating to the estates of the
Godulla Company, which maps have given rise to no observations
on the part of the representatives of the Polish Government before
the Court.

It appears, in the first place, from the documents of procedure
that a large proportion of the estates belonging to the Company
do not reach the size mentioned in Article 12, paragraph 1, of the
Geneva Convention, namely 100 hectares.

The Polish Government has contended that the division of the
properties into portions of less than 100 hectares does not destroy
the right of expropriation if the total figure reaches 100 hectares.
The Court cannot take this view. The provisions of the Geneva
Convention regarding rural property seem to contemplate separate
estates as such, rather than all the estates belonging to one and the
same person. It should be observed, moreover, that the liability
to expropriation of rural property constitutes, under the Geneva
Convention, an exception ; in case of doubt as to the scope of this
exception, its terms must therefore be strictly construed.

As regards the estates of the Orzegow-Czarnylas group which
exceed 100 hectares of agricultural land, the German Government,
in its Case, has stated that these lands are, for the most part, leased to
workmen and that only 49 hectares at Orzegow and 61 at Czarnylas
are. worked by the Company itself. Without directly disputing
these figures, the Respondent has made reservations, adding that
he was not able to take up a definite position in regard to this point,
because, arising out of the claim put forward by the Company
concerned, several circumstances were still under investigation
by the Polish authorities. He has laid especial stress on the fact
that the lands are leased not only to workmen but also to third
parties who are in no sense in the service of the Godulla Company.

The Court is, in the first place, satisfied that the lands in question
JUDGMENT No. 7. —- POLISH UPPER SILESIA 77

cover mining enterprises of the Company and, for this reason, the
observations already set out on several occasions, regarding the
relation existing between the ownership of mines and of the surface,
apply to them.

Furthermore, according to the maps of this group, which the
Agent of the German Government has handed to the Court, the
parcels devoted to agriculture are surrounded by industrial areas
and themselves enclose portions the use of which for industrial
purpose has been established. This, in the Court’s opinion, is
another circumstance rightly invoked by the German Government
as an argument against the liquidation of these lands.

On the basis of the foregoing. considerations, the Court arrives
at the conclusion that the whole of the Orzegow-Czarnylas group
must be considered as devoted principally to serving the needs of
the industrial undertaking. It is therefore hardly necessary to
pause to consider the possible importance attaching to the fact,
adduced by Poland, that the lands of the Company are partly
leased to persons other than workmen or employees of the concern.

As regards the agricultural lands of the Orzesze group, the German
Government has stated that they were bought in three stages,
1838, 1850 and 1896, whilst the coal deposits which they cover
were acquired between 1845 and 1858. The purchase was effected
in view of damage by subsidence and with a view, when the time
came, to sinking pit shafts and setting up the installations neces-
sary for mining operations. The ‘surface estates of the Godulla
Company coincide almost exactly in extent with its mining con-
cessions ; this circumstance, which has been advanced by the
Applicant, is confirmed by the map relating to this group handed
in by that Party’s Agent.

The mines belonging to this group are not yet being worked.
Meanwhile the land is worked as farms, which are devoted to the
needs of the concern: in particular, potatoes are grown, which
are delivered to the central supply organization for the workers,
milk and meat are supplied for the employees and workmen, hay
for the pit ponies, etc. These facts, advanced by the Applicant, have
not been disputed by Poland.

In these circumstances, the Court holds that even the estates of
the Orzesze group must be regarded as principally devoted to
JUDGMENT No. 7. — POLISH UPPER SILESIA | 78

serving the needs of the industrial undertaking. It bases its
decision on the fact that the lands entirely cover coal deposits which,
under No. x of § 1 of Article 9 of the Convention, are held to be
assimilated to large scale industry, and that they have been acquired
with a view to future mining operations; as well as on the fact that
the farming temporarily conducted upon them is devoted to serving
the needs of the concern. It has already been stated that the
temporary character of this use to which they are put cannot render
Article 9, § 3, paragraph 2, inapplicable.

(i) Duke of Ratbor.

The Polish Government has, according to the Monitor Polski,
given notice of its intention to expropriate the following rural
estates belonging to the Duke of Ratibor : those portions of his
landed property situated in the district of Rybnik, in the com-
munes of Adamowice, Bogunice, Cwalecice, Raszczyce and
Zwonowice, of an area of 495 hectares.

The fact that the Duke of Ratibor is of German nationality has
not been disputed. It appears, moreover, from statements made
in Court that the Duke of Ratibor had his domicile upon the estate
which has since been divided by the frontier line and of which those
portions situated in Poland have formed the subject of notice of
expropriation.

The only difference of opinion between the Parties is in regard
to whether the Duke is amongst those German nationals who are
not entitled to retain their domicile in Polish Upper Silesia and
whose property, under the conditions indicated in Article 12 of the
Geneva Convention, is liable to expropriation.

In the contention of the German Government, the Duke has a
domicile in Polish Upper Silesia because he was domiciled, before
the partition of Upper Silesia, upon the estate of Ratibor and there-
fore upon the whole of his entailed estates of which one part,
separated from the rest by the new frontier, has been allotted to
Poland. The German Government does therefore not contend that
the Duke has had two different domiciles, of which one upon the
part now in Polish territory. On the contrary, according to the
Case regarding the Application of August 25th, 1925, Germany dues
not maintain that the Duke is domiciled upon the estate of Rauden,
of which a part is also covered by the notice.
JUDGMENT No. 7. — POLISH UPPER SILESIA _ 79

. The German Government’s argument is based on the idea that,
in cases of cession of territory, and in particular having regard to
the care exercised in the Geneva Convention te preserve coherence
between the two parts of the plebiscite area, the domicile required
to bestow upon an individual the right of choice between the two
nationalities in question, merely presupposes a certain solid attach-
ment of this individual to the land ceded and that this tie exists
in regard to the whole of an estate, if the individual is established
on this estate, residing upon it and working it himself, at the time
of the cession of the territory.

_ The Court cannot accept this view. Article 12 renders liable to
expropriation large estates belonging to German nationals who are
not entitled to retain their domicile in Polish Upper Silesia under
Articles 40 and 42. The possession of a domicile in Upper Silesia,
not merely a certain solid attachment to the land ceded, is the
condition which may in certain circumstances protect the property
of a person from expropriation. In the first place, therefore, the
conception of domicile must be determined and, in the next place,
it must be ascertained where the person concerned was domiciled
at the decisive dates.

The characteristic feature of domicile is the fact that from the
point of view of law, a person is attached to a particular locality.
This locality is normally—as the term ‘‘domicile’’ itself implies—
the home, the house inhabited by the person concerned. If the
whole—perhaps very considerable—extent of an estate could be
“regarded as a domicile, the precise localization of the legal rights
and obligations of a person, which is the most essential feature of
domicile, would be lacking. It is possible to have more than one
domicile, but it is out of the question that the same domicile
should be in two different localities, in two communes, or even
in two different States.

The definition of domicile to be found.in Article 29 of the Geneva
Convention brings out the fact that, according to that Convention,
the domicile is the place where an individual’s activities and
interests, both personal and economic, are mainly centred. His
activities and interests extend to the whole of an estate, or to
several estates, but the centre of them can only be his dwelling
place, or at all events some fixed spot. If the idea that a person
can only be domiciled at the principal centre of his activities and
interests were to be discarded and it were admitted that he could
JUDGMENT No. 7. — POLISH UPPER SILESIA 80

be domiciled on any part of an estate, the inevitable result would be
also to admit the possibility of domicile upon a part of the property
which might, for instance, consist of nothing but uninhabited
forests. Such a consequence is undoubtedly inadmissible.

If, therefore, the Duke of Ratibor has not been domiciled in the
sense indicated above upon the portion of his entailed estates
allotted to Poland, he cannot have in Poland a domicile capable of
retention.

Now, it has not been contended by the Applicant that the Duke
of Ratibor was, at the decisive dates, domiciled, in the sense herein
adopted, upon the part of his entailed estates allotted to Poland.
In these circumstances, the Duke cannot claim under Article 40—
the only provision which might enter into consideration—to
retain his domicile in Polish Upper Silesia.

(j) Count Saurma-J eltsch.

According to the Monitor Polski of December 30th, 1924, the
estates belonging to Count Wilhelm Saurma-Jeltsch,.in respect of
which the Polish Government has given notice of its intention to
proceed to expropriation, are the landed properties situated in the
district of Rybnik and in the communes of Bukow, Kamien (on
the Oder) and Ligota Tworkowska, amounting to an area of
439 hectares.

The case of the rural estates of Count Saurma-Jeltsch has been
dealt with by both Parties in conjunction with that of the Duke
of Ratibor.

The facts and arguments advanced by the Applicant in the case
of Count Saurma-Jeltsch are, in fact, entirely similar to those set
out in the case of the Duke of Ratibor. It has not been disputed
that the Count is not domiciled on a particular estate belonging to
him and situated in Polish Upper Silesia; nor has the contrary
been affirmed. The domicile which it has been submitted that the
Count is entitled to retain in Polish Upper Silesia is simply the
domicile which, in the German contention, covers the whole estate
divided by the new trontier. For the reasons set out in the case
of the Duke of Ratibor, the Court is of opinion that Article 12 of
the Geneva Convention is applicable because Count Saurma-Jeltsch
JUDGMENT No. 7. — POLISH UPPER SILESIA 8x

has no domicile in Polish Upper Silesia which he is entitled to

retain.

FOR THESE REASONS,

The Court, having heard both Parties,

gives judgment as follows :

(x)

(2) (a)

(3) (a)

(6)

(c)

(a)

That the application both of Article 2 and of Article 5 of
the law.of July 14th, 1920, in Polish Upper Silesia, decreed
by the law of June 16th, 1922, constitutes, in so far as it
affects German nationals or companies controiled by Ger-
man nationals covered by Part I, Head III, of the Geneva
Convention, a measure contrary to Article 6 and the
following articles of that Convention ;

That the attitude of the Polish Government in regard to
the Oberschlesische Stickstoffwerke and Bayerische Stick-
stoffwerke Companies was not in conformity with Article 6
and the following articles of the Geneva Convention ;

that the Court is not called-upon to say what attitude on
the part of the Polish Government in regard to the Com-
panies in question would have been in conformity with
the above-mentioned provisions ;

That the notice of intention. to liquidate the rural estates
belonging to Count Nikolaus Ballestrem is not in conformity
with the provisions of Articles 6 to 22 of the Geneva Con-
vention ;

that this also applies in regard to the notice of intention to
liquidate the rural estates of the Giesche Company at
Katowice ;

that the applicant Government’s claim in respect of the
notice of intention to liquidate the rural estates belonging to
Christian Kraft, Prince of Hohenlohe-Oehringen, must be
dismissed ;

that the notice of intention to liquidate the rural estates
belonging to the Vereinigte Kônigs- und Laurahütte
Company is not in conformity with the provisions of
Articles 6 to 22 of the Geneva Convention ;
JUDGMENT No. 7. — POLISH UPPER SILESIA 82

(e) that the applicant Government’s claim in respect of the

(/)

notice of intention to liquidate the rural estates belonging
to Baroness Maria Anna von Goldschmidt-Rothschild, has
no longer any object; |

that the notice of intention to liquidate the rural estates
belonging to Karl Maximilian, Prince of Lichnowsky, is not
in conformity with the provisions of Articles 6 to 22 of
the Geneva Convention ;

that the applicant Government’s claim in respect of the
notice of intention to liquidate the rural estates belonging
to the City of Ratibor must be dismissed, except as regards
the Waldpark ; |

that the notice of intention to liquidate the rural estates

_ belonging to the Godulla Company is not in conformity with

the provisions of Articles 6 to 22 of the Geneva Convention ;

that the applicant Government’s claim in respect of the
notice of intention to liquidate the rural estates belonging to
the Duke of Ratibor must be dismissed ;

that the applicant Government’s claim in respect of the
notice of intention to liquidate the rural estates of Count
Saurma-Jeltsch must be dismissed.

Done in French and English, the French text being authoritative,

at the
nineteen hundred and twenty-six, 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.

Peace Palace, The Hague, this twenty-fifth day of May,

(Signed) MAx Huser,
° President.

(Signed) À. HammarsKJOLp,
Registrar.
JUDGMENT No. 7. ~~ POLISH UPPER SILESIA 83

M. Weiss, the Vice-President, who sat in the Court throughout
that portion of the extraordinary session devoted to consideration
of the present case extending from February 2nd to April 15th,
1926, was compelled to relinquish his seat on April 16th by reason
of illness.

Lord Finlay, while agreeing in the conclusions arrived at by
the Court in the present matter, desired to add the following
observations in regard to the Armistice Convention of Novem-
ber rith, 1918, and the Protocol of Spa of December Ist, 1918.

Count Rostworowski, Polish National Judge; declaring himself
unable to concur in the Judgment delivered by the Court, and

availing himself of the right conferred by Article 57 of the
Statute, has delivered the separate opinion which follows hereafter

(Imitialled) M. H.

(Initialled) À. H,

II