PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SERIE A — N° 15
Le 26 avril 1928

RECUEIL DES ARRETS

N° 12
DROITS DE MINORITÉS
EN HAUTE-SILÉSIE

(ÉCOLES MINORITAIRES)

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE

SERIES A —No. 15
April 26th, 1928

COLLECTION OF JUDGMENTS

No. 12
RIGHTS OF MINORITIES
IN UPPER SILESIA.

(MINORITY SCHOOLS)

LEYDEN
© A. W. SIJTHOFF’S
PUBLISHING COMPANY
“4928

LEYDE
SOCIÉTÉ D’EDITIONS
A, W. SIJTHOFF
1928

PERMANENT COURT OF INTERNATIONAL JUSTICE

8.
April 26th.
THIRTEENTH (EXTRAORDINARY) SESSION, Dont Sita.
Before:
MM. ANZILOTTI, President,
HUBER, Former President,
WEISS, Vice-President,
LODER,
NYHOLM, Judges,
ALTAMIRA,
YOVANOVITCH,
BEICHMANN,
NEGULESCO, Deputy: Judges,
WANG,
ScHUCKING,

Count ROSTWOROWSKI, National Judges.

JUDGMENT No. x2.

RIGHTS OF MINORITIES IN UPPER SILESIA
(MINORITY SCHOOLS).

The German Government, represented by Dr. Budding,
President of the district of Marienwerder,

Applicant,
versus
The Polish Government, represented by M. J. Mrozowski,
President of the Supreme Court of Warsaw,

Respondent,
THE COURT,

composed as above,
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 5.

‘having heard the observations and conclusions of the
Parties, :
delivers the following judgment :

The German Government, by an Application instituting
proceedings filed with the Registry of the Court on January 2nd,
1928, 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 a suit concerning the
exercise of the rights of minorities in connection with public
schools in Upper Silesia, which rights are dealt with in
Articles 74, 106 and 1331 of the German-Polish Convention
concerning Upper Silesia. |

In the original English version of the Application the Court
is asked for judgment to the effect :

“that Articles 74, 106 and 131 of the German-Polish
Convention relating to Upper Silesia of May r5th, 1922,
establish the unfettered liberty of an individual to declare
according to his own conscience and on his own personal
responsibility that he himself does or does not belong
to a racial, linguistic or religious minority and to choose
the language of instruction and the corresponding school
for the pupil or child for whose education he is legally
responsible, subject to no verification, dispute, pressure
or hindrance in any form whatsoever by the authorities ;

+ that any measure singling out the minority schools to
their detriment is incompatible with the equal treatment
granted by Articles 65, 68, 72, paragraph 2, and the
Preamble to Division IT’.
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 6

The German Government’s Application was, in accordance
with Article 40 of the Statute, communicated to the Polish
Government on January 3rd, 1928.

On January 2nd, 1928, together with the Application, the
German Government had filed its Case in the suit. By an
Order made on January 3rd, 1928, the President of the Court
recorded the filing of the Case by the Applicant on Jan-
uary 2nd and fixed as follows, in accordance with Article 33,
paragraph 3, of the Rules of Court, the time-limits for the
filing of the subsequent documents in the written proceedings :

For the filing of the Counter-Case, by the Respondent,
| Saturday, February 4th, 1928.
For the filing of the Reply, by the Applicant,
Wednesday, February 22nd, 1928.
For the filing of the Rejoinder, by the Respondent,
Saturday, March roth, 1928.

The Polish Government having asked for an extension of
the time allowed for the filing of its Counter-Case, the date
for the filing of this document was, by a further Order,
made on February 3rd, fixed at February 2oth, 1928. By
the same Order, the time-limit for the filing of the Reply
by the Claimant was fixed at March ist. The Counter-Case
and the Reply were duly filed on the dates thus fixed.

The time allowed for the filing of the Rejoinder not having
been extended, the last document of the written proceedings
was filed on March roth, 1928.

Having regard to the fact that the written proceedings in
this case, which was regarded as urgent, were to be concluded
on March toth, the extraordinary session, which had been
convoked to enable the Court to give its advisory opinion
on the question regarding the jurisdiction of the Danzig
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 7

Courts before the forty-eighth Session of the Council of the
League of Nations, was not declared closed before that date.
The written proceedings having been concluded, the case
concerning certain rights of minorities in Upper Silesia (minor-
ity schools) was on March 12th, 1928, entered in the list for
the thirteenth (extraordinary) Session.

In the course of hearings held on March 13th, 15th and
17th, the Court has heard the oral pleadings, reply and
rejoinder submitted by Dr. Budding, President of the district
of Marienwerder, Agent for the German Government, and
M. J. Mrozowski, President of the Supreme Court of Warsaw,
Agent for the Polish Government.

Finally, the Court has had before it the additional docu-
ments enumerated in the Annex attached to this judgment.

The submissions of the applicant Government are formulated
in the original English version of the Case in the same terms
as in the Application.

In the Polish Government’s Counter-Case the Court is
asked :

“to dismiss the German Government’s claim ;

or, in the alternative, to give judgment to the effect
that Articles 69, 74, 106 and 131 of the German-Polish
Convention of May 15th, 1922, concerning Upper Silesia
establish the freedom of every national to declare,
in accordance with his conscience and on his personal
responsibility, that he does or does not belong to a racial,
linguistic or religious minority and also to declare what
is the language of a child or pupil for whose education
he is legally responsible”.
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 8

The submissions of the applicant Government are not
amended in the Reply. On the other hand, the Respondent,
in his Rejoinder, argues that the Applicant, in his Reply,
has excluded the question of the interpretation of Article 69
of the Geneva Convention, and on this ground the Applicant
submits that the Court “should decline jurisdiction”’.

Furthermore, the Respondent in his Rejoinder formulates
the objection already mentioned in the Counter-Case, to the
effect that the case referred to the Court has already been
settled by the Council of the League of Nations.

The submissions of the Parties have not been substantially
modified in the oral proceedings. The German Agent, however,
referring to the new submissions made in the Polish Govern-
ment’s Rejoinder, has asked the Court for judgment on the
merits in accordance with his submissions.

The Polish Agent has maintained his claims in the oral
proceedings, though he stated that he had not raised his
objection to the jurisdiction as a preliminary objection, but
that he meant it to be taken together with the merits.

THE FACTS.

Under Article 88, paragraph 1, of the Treaty of Versailles,
the inhabitants of the portion of Upper Silesia the boundariés
of which are indicated in the same article, were to be “called
upon to indicate by a vote whether they wished to be attached to
Germany or to Poland’.

The plebiscite took place on March zoth, 1921, and the
Conference of Ambassadors gave on October 2oth, 1921, in
accordance with the opinion given by the Council of the
League of Nations, a decision concerning the partition of
Upper Silesia between Germany and Poland and the manner
in which this partition was to be carried out. This decision
contains the following passages amongst others :

“II. The German and Polish Governments will conclude
as early as possible..... a convention to give effect
to the following provisions !:

1 Text taken from League of Nations Official Journal.
JUDGMENT No. 12,—UPPER SILESIA (MINORITY SCHOOLS) 9

K. Rights of Nationality and Domicile and Protection
of Minorities in | Upper Silesia.

The Treaty with regard to the protection of minorities,
etc., concluded on June 28th, 19:19, between the United
States of America, the British Empire, France, Italy
and Japan of the one part, and Poland of the other
part, shall be applicable to those parts of Upper Silesia
definitely recognized as part of Poland. The principles
of equity and the maintenance of the economic life of
Upper Silesia demand that the German Government
should be bound to accept, at least for the transitional
period of fifteen years, dating from the definitive alloca-
tion of the territory, stipulations corresponding to Articles 1,
2, 7, 8, 9 (paragraphs I and 2), 10, 1x and x2 of the
said Treaty, as regards those parts of Upper Silesia
definitely recognized as part of Germany.

The provisions of the agreement to be concluded
between the German and Polish Governments, in order
to put into force the above-mentioned principles, constitute
obligations of international concern. for Germany and
Poland, and shall be placed under the guarantee of
the League of Nations in the same way as the provisions
of the Treaty of June 28th, roro.

Any petition addressed by one or more of the inhab-
itants of Upper Silesia to the Council of the League
of Nations with regard to these provisions or to the
execution of the provisions of the Treaty of June 28th,
1919, in so far as these provisions affect persons belonging
to racial, religious or linguistic minorities, shall be sent
to the Government in whose territory the petitioners
are domiciled. This Government shall be bound to for-
ward them, with, or without observations, to the Council.
of the League of Nations, for consideration.

The following bodies shall be constituted to supervise
the carrying out of these measures:

1. An Upper Silesian Mixed Commission, consisting
of two Germans and two Poles, from Upper Silesia, and
of a President of another nationality, appointed by the
Council of the League of Nations.

2. An Arbitral Tribunal, entrusted with the duty of
settling any private disputes which may result from the
application of the convention referred to above. This
Tribunal shall be composed of one arbitrator appointed
by the German Government, and of one arbitrator
appointed by the Polish Government. The Council
of the League of Nations shall be requested to appoint
the President of this tribunal.
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 10

All disputes regarding the execution and interpretation
of this convention shall be settled in conformity with
the provisions of this convention.”

The Treaty concluded on June 28th, 1019, between the
United States of America, the British Empire, France, Italy
and Japan, on the one part, and Poland, on the other part,
is the Treaty of Minorities hereinafter quoted.

The German-Polish Convention regarding Upper Silesia,
negotiated in accordance with the Decision of the Conference
of Ambassadors, was signed at Geneva on May 5th, 1922.
The articles of this Convention which are of some importance
in connection with the present case are reproduced in the
Annex.

*
* *

The dispute brought before the Court by the Application
filed on January 2nd, 1928, by the German Government arises
out of the application in practice of the provisions of the
Geneva Convention concerning the protection of minorities.

The history of this dispute is as follows, according to the
reports adopted by the Council of the League of Nations,
which have been corroborated by the statements of the Parties :

During the year 1926, the Polish authorities ordered an
administrative enquiry to be held in order to establish the
authenticity of applications for admission to the minority
schools and to ascertain whether such applications emanated
from persons authorized to submit them, as also to verify the
existence of the circumstances contemplated in Articles 106
and 131 of the Geneva Convention in regard to the children
in respect of whom the applications had been made.

As a result of the investigations, 7,114 entries of children
in the registers of the minority schools were on various
grounds declared null and void by the authorities, and at
the beginning of the school-year 1926-1927 all pupils whose
names had been struck off were excluded from attendance.
In many cases police summonses were issued against parents
who refused to send their children to school. A number of
parents were condemned to pay fines for not complying with
the law concerning compulsory attendance at school.
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) II

On September 25th, 1926, the Deutscher Volksbund für
Polnisch Oberschlesien sent to the Minorities Office at Katowice
a petition based on Articles 149 to 157 of the Geneva Conven-
tion. In this petition, the Volksbund sought a declaration to
the effect that the decisions of the Voivode of Silesia, annul-
ling entries in the school registers on the ground that the
children entered did not belong to the linguistic minority,
were illegal and also submitted that, until a decision had been
given upon this petition, the Voivode could neither “inflict
penalties nor exercise measures of compulsion in respect of
either the persons responsible for the education of children or
of the children themselves’’.

In accordance with Article 152 of the Geneva Convention,
this petition was transmitted for his opinion to the President
of the Mixed Commission withthe observations of the Polish
Minorities Office.

In the Opinion given by him on December 15th, 1926,
the President of the Mixed Commission arrived at the follow-
ing conclusion?: |

“J. In view of Articles 75 and 131 of the Geneva
Convention, the general administrative enquiry which
took place in the summer of 1926 for the hearing of all

parents, guardians, etc., who had entered children for
the minority schools was not justified.

2. The following entries for the minority schools were
wrongfully rejected :

A. All entries of children whose parents, guardians,
etc., upon examination, formally expressed the desire
to send their children to the German minority school
irrespective of whether they stated the mother-tongue
to be Polish, German and Polish, or German.

B. All entries of children whose parents, guardians,
etc., upon examination, made no declaration as to the
school they desired their children to attend, irrespective
of whether they stated the mother-tongue to be Polish,
German and Polish, or German.

1 Text taken from League of Nations Official Journal.
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 12

C. All entries of children whose parents, guardians,
etc., upon examination, expressed the desire to have
their children taught in German and Polish, but did
not specify whether they were to be taught in the
German minority school or in the Polish majority school,
irrespective of whether they stated the mother-tongue
_to be Polish, German and Polish, or German.

D. The entries of the 1,307 children whose parents,
guardians, etc.,- did not respond to the summons to
appear for examination in the summer of 1926, and
whose entries were annulled on this ground.

All the children included under A, B, C and D shall
immediately and ex officio be admitted to the minority
schools, with the exception of those who were excluded :

(a) because they did not possess Polish nationality ;

(0) because they were entered by a person not legally

responsible for their education ;

(c) because they did not belong to the school district ;
(d) because they should have attended another school ;

(e) because they were no longer subject to the obligation
to attend school.
The petitioner may submit special requests as regards these
categories of pupils.

3. The competent authorities are requested to issue
no police summonses for failure to comply with the law
regarding attendance at school to parents, guardians,
etc., of children who, in virtue of paragraph 2 of the
present Opinion, are to be admitted ex officio to the
minority schools. The authorities are also requested to
withdraw the summonses already issued if the latter
have not already been pronounced upon by the courts.”

After receiving the Opinion of the President of the Mixed
Commission, the Voivode of Silesia, on January 13th, 1927,
declared that he was unable to comply with it in its entirety,
though he added that he would satisfy any legitimate demands
made by the German minority in Polish Upper Silesia in
regard to educational matters.

The Voivode’s declaration did not satisfy the Deutscher
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 13

Volksbund and accordingly the latter announced its intention
of appealing under Articles 149 to 157 of the Geneva Conven-
tion to the Council of the League of Nations. The Deutscher
Volksbund’s appeal dated January 15th, 1927, was trans-
mitted on February 11th, 1927, through the. Polish Govern-
ment to the Secretary-General for submission to the Council.
The Polish Government’s observations regarding this appeal
were submitted to the Council by a letter dated Febru-
ary 18th, 1927.

The Council of the League of Nations considered the question
at meetings held on March 5th, 8th, and 12th; one aspect
of the question again came before the Council on Decem-
ber 8th, 1027.

On March 12th, 1927, the Council adopted a Resolution
which amongst other things directed the attention of the
Polish Government to “the great importance of not insisting
upon the measures taken by its local authorities to exclude
from the minority schools the following categories of children
for whom applications for admission have been received:

“rt, Demands for admission invalidated because the parents,
guardians, etc., did not comply with the invitation to appear
at the enquiry held during the summer of 1926.

“2, Demands for admission invalidated on the grounds that

the children to be admitted, whose mother-tongue was stated
at the time of the enquiry to be both German and Polish,
did not belong to the German minority.”’

The Council also considered it inexpedient to admit to
minority schools children who spoke only Polish. It decided
to institute a system of enquiry into the concrete cases fall-
ing under the categories mentioned in 1 and 2 above which
might appear doubtful to the Polish local school authorities.

According to the terms of the Resolution adopted by the
Council, “a similar system of enquiry might also be applied
in the case of any fresh demands for the admission of children
that may subsequently be received from persons legally res-
ponsible for. their education, when such cases appear doubtful
to the Polish local school authorities. The object of the
- JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 14

enquiry will be to ascertain whether or not a child speaks
the school language used in the minority school so that it
can usefully attend that school.”

_ It was decided that the method of enquiry should be as
follows : In every doubtful case the local authorities were to
refer the question to. the President of the Upper Silesian
Mixed Commission, assisted by a Swiss national, who would be
an expert in educational matters, appointed in principle by
the Council of the League of Nations. If, in view of the
expert’s opinion as to the child’s knowledge of German, the
President declared that it would be useless for the child to
attend the minority school, the child would be excluded from
that school.

This system of enquiry was also-to be applied in the case
of children in respect of whom the persons legally responsible
for their education had declared at the enquiry. of 1926 that
their mother-tongue was Polish, should these persons express
a desire to that effect.” In such cases, the child in question
was to be allowed to: enter the minority school if, in view of
the expert’s opinion as to its knowledge of German, the
President declared that the child could usefully. be admitted
to that school...

The Resolution in. question was adopted after a discussion
in the course of which the German representative pointed
out that the report to the Council left open the legal question
raised in connection with the case.

The Polish Government, by means of a note from the Polish
delegation to the League of Nations to the Secretary-General,
dated October 18th, 1927, requested the Rapporteur to. the
Council upon the question to give a decision as to whether
the system of enquiry. established by the Council Resolution
of March 12th, 1927, was to be applied, in accordance with
sub-paragraph 3 of paragraph II (quoted above) to 735
children of the school-year 1927-1928. This step was taken
in accordance with paragraph IV of the above- mentioned
Resolution, which runs as follows: :

“Any. question concerning the execution of the above
provisions which the Polish Government or the President
of the Mixed Commission may desire to have investigated
shall, for greater convenience, be definitely settled by the
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 15

Rapporteur to the Council unless the. Rapporteur considers
it necessary to refer it to the Council.”

It appears from the reply of M. Urrutia, the Rapporteur
to the Council, that he considered that the system of enquiry
instituted by the Resolution of March 12th, 1927, was applic-
able to the 735 children referred to in the Polish Note of
October 18th, 1927.

As the Rapporteur pointed out at the Council meeting of
December 8th, 1927, this opinion did not prejudge any deci-
sion which the Council itself might be called upon to take in
regard to the children of the school-year 1927-1928.

At the same meeting, the German representative explained
that the decision taken by the Council in March, 1927, had
been regarded by him as applying solely to the children of
the 1926-1927 class. He observed that there was a divergence
of opinion amongst the Members of the Council in regard
to this point, and held that the time had come finally to
clear up the legal questions of principle governing the
admission of children to German minority schools. Accordingly,
since the dispute was one of a legal nature, he stated that
it was now his intention to apply to the Permanent Court of
International Justice for an interpretation of the relevant
clauses of the Geneva Convention.

The Council noted the statement of the German represent-
ative with the observation that it was understood that the
examinations then proceeding of children belonging to the
school-year 1927-1928 would continue. The decision to be
given by the Court would determine whether children who,
as a consequence of these examinations, might be transferred
to the Polish school, should finally be admitted to the minor-
“ity schools.

+
* *

In his oral address to the Court, the Agent for the German
Government also alluded to the report concerning a new
petition made by the Deutscher Volksbund of Polish Upper
Silesia, which report was adopted by the Council of the
League of Nations on March 7th, 1928.
JUDGMENT No. 12.—UPPER.SILESIA (MINORITY SCHOOLS) 16

By means of a petition dated January 30th, 1928, and
addressed directly to the Council of the League of Nations
under Article 147 of the Geneva Convention, the Deutscher
Volksbund submitted to the Council a question relating to the
establishment of a minority elementary school in the school
district of Biertultowy, in Polish Upper Silesia.. In the
observations submitted by it on March rst, 1928, in regard
to this petition, the Polish Government expressed thé opinion
that the main question raised in the petition, namely, the
question concerning the opening of the minority school of
Biertultowy, could not usefully be considered by the Council
at the moment, since it was bound up with the question of
the interpretation of Articles 106 and 131 of the Geneva
Convention and the interpretation of these articles was then
the subject of proceedings before the Permanent Court of
International Justice at The Hague. The Deutscher Volksbund
having pointed out that, prior to its direct appeal to the
Council, it had submitted its petition to the Polish Office of
Minorities at Katowice in accordance with the procedure laid
down in Articles 149 to 157 of the Geneva Convention, but —
had been unable to obtain any answer concerning the action
taken in regard to that communication, the Polish Government
further explained that the reason why it had not hitherto
seen fit to forward the appeal in question to the Council was
simply because it held that the question forming the subject
of the petition could not usefully be considered by the Council
for the time being.

The Council noted this statement of the Polish Government
and decided to postpone consideration of the question con-
cerning the creation of the minority school at Biertultowy
until the Permanent Court of International Justice had given
its decision upon the German Government’s Application of
January 2nd, 1928, to which the Polish Government had
made reference.
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS)

17

THE LAW.

I,

Article 72 of the Geneva Convention is as follows !:

(Article 12 of the Minorities Treaty of June 28th, 1919.)

I. —L’ Allemagne agrée que,
dans la mesure où les sti-

1.— La Pologne agrée que,
dans la mesure où les stipu-

_ The English text quoted below follows the official English text of the
corresponding article (12) of the Minorities Treaty.

1. Germany agrees that the sti-
pulations in the foregoing articles, so
far as they affect persons belonging to
racial, religious or linguistic minorities,
constitute obligations of international
concern and shall be placed under the
guarantee of the League of Nations.
They shall not be modified without
the assent of a majority of the Council
of the League of Nations.

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

.3. Germany further agrees that
any difference of opinion as to ques-
tions of law or fact arising out of these
articles between the German Govern-
ment and any other Power, a Member
of the Council of the League of Na-
tions, shall be held to be a dispute of
an international character under Art-
icle 14 of the Covenant of the League
of Nations. The German Government
hereby consents that any such dispute
shall, if the other Party thereto
demands, be referred to the Perm-
anent Court of International Justice.
The decision of the Permanent Court
shall be final and shall have the same
force and effect as an award under
Article 13 of the Covenant.

1. Poland agrees that the stipula-
tions in the foregoing articles, so
far as they affect persons belonging
to racial, religious or linguistic
minorities, constitute obligations of
international concern and shall be
placed under the guarantee of the
League of Nations. They shall not
be modified without the assent of
a majority of the Council of the
League of Nations. The United
States, the British Empire, France,
Italy and Japan hereby agree not to
withhold their assent from any modifi-
cation in these articles which is in due
form assented to by a majority of the
Council of the League of Nations.

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

3. Poland further agrees that any
difference of opinion as to questions
of law or fact arising out of these
articles between the Polish Govern-
ment and any one of the Principal
Allied and Associated Powers or
any other Power, a Member of the
Council of the League of Nations,
shall be held to be a dispute of an
international character under Art-
icle 14 of the Covenant of the League
of Nations. The Polish Government
hereby consents that any such dispute
shall, if the other Party thereto
demands, be referred to the Perm-
anent Court of International Justice.
The decision of the Permanent Court
shall be final and shall have the same
force and effect as an award under
Article 13 of the Covenant.
JUDGMENT No.: I2.—UPPER SILESIA (MINORITY SCHOOLS) 18

pulations des articles précé-
dents affectent des personnes
appartenant a des minorités
de race, de. religion ou de
langue, ces stipulations consti-
tuent des obligations d’intérét
international et seront placées
sous la garantie de la Société
des Nations. Elles ne pourront
être modifiées sans l’assenti-
ment de la majorité du Conseil
de la Société des Nations.

2. — L'Allemagne agrée que
tout Membre du Conseil de la
Société des Nations aura le droit
de signaler à l'attention du Con-
seil toute infraction ou danger
d'infraction à l’une quelconque
de ces obligations, et que lé
Conseil pourra procéder de
telle façon et donner telles
instructions qui paraîtront ap-
propriées et efficaces dans la
circonstance.

3. — L'Allemagne agrée en

outre qu’en cas de divergence
d'opinion, sur des questions
de droit ou de fait concernant
ces articles, entre le Gouver-
nement allemand et une Puis-
sance quelconque, Membre du

Conseil de la Société des Na-

tions, cette divergence sera
considérée comme un différend
ayant un caractére internatio-
nal selon les termes de l’article
14 du Pacte de la Société des
Nations. Le Gouvernementalle-
mand agrée que tout différend

lations des articles précédents
affectent des personnes appar-
tenant à des minorités de race;
de religion ou de langue, ces
stipulations. constituent des.
obligations d’intérét interna-
tional et seront placées sous
la garantie de la Société des
Nations. Elles ne pourront étre
modifiées sans l’assentiment
de la majorité du Conseil de la
Société des Nations. Les États-
Unis d'Amérique, l'Empire bri-
tannique, la France, l'Italie
et le Japon s'engagent à ne
pas refusér leur assentiment
à toute modification desdits
articles, qui serait consentie
en due forme par une majo-
rité du Conseil de la Société
des Nations. |

2. — La Pologne agrée que
tout Membre du Conseil de la
Société des Nations aura le
droit de signaler à l'attention
du Conseil toute infraction ou
danger d'infraction à l’une
quelconque de ces obligations,
et que le Conseil pourra pro-
céder de telle façon et donner

‘telles instructions qui parai-

tront appropriées et efficaces
dans la circonstance.

3. — La Pologne agrée en
outre qu'en cas de divergence
d'opinion, sur des questions de
droit ou de fait concernant
ces articles, entre le Gouver-
nement polonais et l’une quel-
conque des Principales Puis-
sances alliées et associées où
toute autre Puissance, Membre
du Conseil de la Société des
Nations, cette divergence sera
considérée comme un différend

‘ayant un caractère internatio-

nal selon les termes de l’arti-
cle 14 du Pacte de la Société
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 19

de ce genre sera, si l’autre
Partie le demande, déféré a la
Cour permanente de Justice.
La décision de la Cour per-
manente sera sans appel et
aura la méme force et valeur
qu'une décision rendue en ver-
tu de l’article 13 du Pacte.

des Nations. Le Gouvernement
polonais agrée que tout diffé-
rend de ce genre sera, si
l’autre Partie le demande, défé-
ré à la Cour permanente de
Justice. La décision de la
Cour permanente sera sans
appel et aura la même force.

et valeur qu’une décision ren-
due en vertu de l'article 13
du Pacte.

Relying on paragraph 3 of this article, according to the
terms of which any State being a Member of the Council of
the League of Nations has the right to bring before the Court
any dispute “as to questions of law or fact arising out of
these articles” (that is to say, the articles which in Division I
precede Article 72; see Annex), the German Government has,
in its Application and in its Case, formulated the submission
the terms of which have been reproduced above.

This submission would seem to comprise three contentions
the first two of which must be taken together and are, in the
light of the discussions which have taken place before the
Council of the League of Nations, designed to obtain from
the Court a statement in accordance with the contention
formulated before the Council by the German representative,
namely, “that even a child which knows no language but
Polish must be allowed admission to the minority school”,
and “that the decision as to which school the child is to attend
depends solely upon its parents’ wishes, irrespective of the
language spoken by the child’.

The contentions comprised in the German Government’s
submission appear to be as follows:

(x) Articles 74, 106 and 131 of the Geneva Convention
establish the unfettered liberty of any person to declare,
according to his own conscience and on his own personal
responsibility, that he does or does not belong to a racial,
linguistic or religious minority, subject to no verification,
dispute, pressure or hindrance in any form whatsoever on the
part of the authorities.

(2) The above-mentioned articles also established the un-
fettered liberty of any person to choose the language of

3
JUDGMENT No. I2.— UPPER SILESIA (MINORITY SCHOOLS) 20

_instruction and the corresponding school for the pupil or child
for whose education he is responsible—likewise subject to no
verification, dispute, pressure or hindrance in any form what-
soever on the part of the authorities. |

(3) Any measure singling out the minority schools to their
detriment is incompatible with the equal treatment granted
by Articles 65, 68, 72, paragraph 2, and the Preamble to
Division II.

The submissions of the Polish Government’s Counter-Case
have been set out above.

It has also been remarked that in his written Rejoinder the
Agent for the Polish Government submitted that the Court
should decline jurisdiction and he maintained his submission
in the oral proceedings, though stating that he did not raise
this objection as a preliminary objection but intended it. to
be taken with the merits. The same applies as regards the
objection to the effect that the matter had already been
settled by the Council of the League of Nations.

The word débouter (dismiss) in the Polish Government’s
main submission must be taken as possessing the meaning
ordinarily attaching to it in French law; it is therefore clear
that this submission relates to the merits of the suit and
means that the Polish Government disputes the accuracy of
the German Government’s contentions and asks the Court to
dismiss the claim.

The terms of the alternative (éventuelle et subsidiaire) sub-
mission of the Polish Government, if compared with the sub-
mission of the German Government, also show that the Polish
Government does not accept the German Government’s con-
tentions. The Court will later have to consider more closely
the differences of opinion existing between the Parties in
regard to these contentions. But it seems desirable to observe
already .in this connection that the following facts amongst
others emerge from a comparison between the two submissions :

Poland holds that, as well as the articles quoted in support
of the first two contentions of the German Government,
Article 69 of the Convention must also be taken into account ;

Poland does not admit that the articles in question bestow.
unfettered liberty on any person ‘“‘to choose the language of
instruction and the corresponding school for the pupil or
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 2I

child for whose education he is legally responsible”, but only
“liberty to declare what is the language. of a pupil or child” ;
and , .
neither does Poland accept in its entirety the German
contention regarding exemption in the exercise of these rights
from any ‘verification, dispute, pressure or hindrance on the
part of the authorities”. |

*
* *

The Court will now proceed to consider the objection to
the jurisdiction formulated by the Agent for the Polish Govern-
ment in his written Rejoinder. This objection is based on the
following argument :

“It appears from the final observations of No. III of
the Reply that the German Government excludes the question
of the interpretation of Article 69 of the Geneva Convention
when it says:

“No doubt can exist that Article 131, in connection with
Article 74, regulates the question of admission to the
minority schools exhaustively and clearly for both parts
of the plebiscite district.”

It is only in the Reply that the German Government
defines the subject of the dispute so clearly, and this neces-
sarily raises the .question of jurisdiction. Only differences
of opinion as to questions of law or fact arising out of the
articles which precede Article 72, and not out of those which
follow it, may be referred to the Court. The terms of para-
graph 3 of Article 72 of the Convention are quite clear.”

In regard to this objection, the Agent for the German
Government has in the first place submitted that it has been
presented too late—since preliminary objections, according
to Article 38 of the Rules of Court, must be made at. latest
in the Counter-Case. He argues that the Polish Government
might very well have raised the question of jurisdiction in
its Counter-Case, on the ground that the German Government
had not cited Article 69 in support of its interpretation. He
also denies that the German Government has adopted the
standpoint that Article 69 should not be taken into considera-
tion, but he regards this point as of no importance since he
JUDGMENT No. I2.—-UPPER SILESIA (MINORITY SCHOOLS) 22

holds that the Polish Government is mistaken in its opinion
that recourse may only be had to the Court for disputes
concerning Articles 64 to 71. |

Article 38 of the Rules of Court is as follows :

“When proceedings are begun by means of an application,
any preliminary objection shall be filed after the
filing of the Case by the Applicant and within the time
fixed for the filing of the Counter-Case.

The documént submitting the objection shall contain
a statement of facts and of law on which the plea is
based, a statement of conclusions and a list of the doc-
.uments in support; these documents shall be attached ;
it shall mention the evidence which the Party may desire
to produce.

Upon receipt by the Registrar of the document sub-
mitting the objection, the Court, or the President if the
Court is not sitting, shall fix the time within which the
Party against whom the plea is directed may submit
a written statement of its observations and conclusions ;
documents in support shall be attached and evidence
which it is proposed to produce shall be mentioned.

Unless otherwise decided by the Court, the further
proceedings shall be oral. The provisions of paragraphs
4 and 5 of Article 69 of the Rules shall apply.”

The object of this article was to lay down when an objection to
the jurisdiction may validly be filed, but only in cases where
the objection is submitted as a preliminary question, that is
to say, when the Respondent asks tor a decision upon the
objection before any subsequent proceedings on the merits. |
It is exclusively in this event that the article lays down what
the procedure should be and that this procedure should be .
different from that on the merits.

But it does not follow from this that an objection to the
jurisdiction which is not filed as a preliminary objection in
the sense indicated above, can be taken at any stage of the
proceedings.

The Court’s jurisdiction depends on the will of the Parties.
The Court is always competent once the latter have accepted
its jurisdiction, since there is no dispute which States entitled
to appear before the Court cannot refer to it. Article 36 of
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 23

the. Statute, in its first paragraph, establishes this principle
in the following terms: —
“The jurisdiction of the Court comprises ‘all cases

which the Parties refer to it and all matters specially
provided for in treaties and conventions in force.”

| This principle only becomes inoperative in those exceptional
cases in which the dispute which States might desire to refer
to the Court would fall within the exclusive jurisdiction
reserved to some other authority. That, however, is not the
position in the present suit; for the jurisdiction possessed
by the Council of the League of Nations under Articles
147 and 149 of the Geneva Convention to decide upon
individual or collective petitions, is entirely distinct from,
and in no respect restricts, the Court’s jurisdiction to. hear
and determine disputes between States. This is shown by the
fact that the jurisdiction derived by the Council from these
articles also covers the articles of Division I of this Part of,
the Convention in regard to which Article 72, paragraph 3,
expressly confers jurisdiction upon the Court in the case of
disputes between the States therein mentioned.

\'The Court’s position, in regard to jurisdiction, cannot be
compared to the position of municipal courts, amongst which.
jurisdiction is apportioned by the State, either vatione materia
or in accordance with a ‘hierarchical system. This division of
jurisdiction is, generally speaking, binding upon the Parties
and implies an obligation on the part of the Courts ex officio
to ensure its observance. Since in such cases the raising of
an objection by one Party merely draws the attention of the
Court to an objection to the jurisdiction which it must ex
officio consider, a Party may take this step at any stage of
the proceedings.|

The acceptance by a State of the Court’s jurisdiction in a
particular case is not, under the Statute, subordinated to the
observance of certain forms, such as, for instance, the previous
conclusion of a special agreement |

Thus, in Judgment No. 5 the Court has accepted as sufficient
for the purpose of establishing its jurisdiction a mere declaration
made by the Respondent in the course of the proceedings
agreeing that the Court should decide a point which, in the
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 24

Court’s opinion, would not otherwise have come within its
jurisdiction. And there seems to be no doubt that the consent
of a State to the submission of a dispute to the Court may
not only result from an express declaration, but may also be
inferred from acts conclusively establishing it. It seems hard
to deny that the submission of arguments on the merits,
without making reservations in regard to the question of
jurisdiction, must be regarded as an unequivocal indication
of the desire of a State to obtain a decision on the merits
of the suit.] And, as the Court has already observed, the
submissions of the Counter-Case aim at a decision on the
merits. .

The Court is fully aware that the German Government
submitted the Application instituting proceedings under Art-
icle 72, paragraph 3, of the Geneva Convention and, therefore,
in its capacity as Member of the Council of the League of
Nations, whereas, in regard to the questions submitted to
the Court exclusively in virtue of the consent of the Parties,
the German Government can only appear as a contracting
Party to the Geneva Convention.

The Court, however, holds that there is nothing in this
Convention or in the principles governing the Court’s juris-
diction to prevent questions not falling within the category
of those in respect of which compulsory jurisdiction is estab-
lished, from being submitted to the Court by agreement
between the Parties, notwithstanding the fact that the suit
has been brought on the basis of the clause conferring com-
pulsory jurisdiction. The Court, in this connection, refers
to what it observed in Judgment No. 5, already referred to,
namely, that a dispute relating to Protocol XII of Lausanne,
in regard to which no provision was made for its jurisdiction,
had been validly submitted to it by virtue of the consent of
the Respondent, and this was in a suit brought by the Greek
Government under Article 26 of the Mandate for Palestine
and in its capacity as a Member of the League of Nations.
It is true that in this case the consent of the Respondent
took the form of an express declaration, whereas in the pre-
sent case, it only follows from the fact of having asked for
a decision on the merits, without making reservations as to
fhe question of jurisdiction. This circumstance, however,
JUDGMENT No. I2.—-UPPER SILESIA (MINORITY SCHOOLS) 25

cannot, in the Court’s opinion, justify a different conclusion;
since there is no rule laying down that consent must take
the form of an express declaration rather than that of acts
conclusively establishing it.

Tf, in a special case, the Respondent has, by an express
declaration, indicated his desire to obtain a decision on the
merits and his intention to abstain from raising the question
of jurisdiction, it seems clear that he cannot, later ‘on in the
proceedings, go back upon that declaration. This would’ not
hold good only if the conditions under which the declaration
had been made were such as to invalidate the expression of
intention, or if the Applicant had, in the subsequent pro-
ceedings, essentially modified the aspect of the case, so that
the consent, given on the basis of the original claim, could
not reasonably be held to. apply to the claim in the form
which it now assumes. And, in the Court’s opinion, there is
no reason for dealing otherwise with cases in which the inten-
tion of submitting a matter to the Court for decision has been
implicitly shown by the fact of arguing the merits without
reserving the question of jurisdiction;

The Respondent seems also to share this view, a fact which
appears from the manner in which he justifies, in his Rejoin-
der, the raising of his objection at this stage in the proceed-
ings only. He bases his objection on the fact that the Ger-
man Government in its Reply discards, as irrelevant to the
case, Article 69 of the Geneva Convention; this fact, in his
opinion, did not emerge so clearly from the German Case.

The Court, however, does not consider that this reason
is sufficient to justify the withdrawal of the consent already
implicitly given. The Applicant, in his Reply, has not altered
his submission in which he only cites, in support of his first
two contentions, articles of the Convention following Art-
icle 72. The Counter-Case itself shows that the Agent for the
Polish Government had already bestowed attention to this _
circumstance and that he might very well have raised the
question of jurisdiction in his Counter-Case if he had wished.
Instead of doing so, the Polish Government, in its Counter-
Case, merely lays stress on the importance of Article 69 for
the purposes of the decision on the merits of the suit, and
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 26

the German Government, in its Reply, accepts this line of
discussion and maintains that Article 69 constitutes an argu-
ment in support of its contentions. Even if one were dis-
posed to regard the consent to the examination of the German
submissions by the Court as depending on Article 69 being
taken into consideration, this condition would thus have been
fulfilled. Indeed, as will be shown later, the Court, when
considering the merits, has itself taken up the standpoint that
Article 69 must be taken into account, in conformity with
the views expressed by the Polish Government in its Counter-
Case.

Furthermore, the declarations of the Polish Government
which, as has already been stated, were recorded by the
Council at its meeting of March 7th, 1928, also tend to indi-
cate the significance to be attached to the fact that the Polish
Government, in its Counter-Case, has replied on the merits
of the suit without making any reservations.

The Court, therefore, arrives at the conclusion that the
Polish Government has implicitly accepted the jurisdiction of
the Court to give judgment on the merits in respect of all
the claims of the German Government and that the objection
to the jurisdiction made in the Rejoinder cannot invalidate
the acceptance which existed at the time of the submission
of the Counter-Case.

Moreover, even if this were not the case, the argument
against the Court’s jurisdiction, which is based on Article 72,
paragraph 3, could have no bearing on the third contention
. of the German Government, in so far as that contention is
based on Articles 65 and 68 of the Convention, which articles
are amongst those contemplated in Article 72, paragraph 3.
' The Court, having established that it is competent in
virtue of the acceptance of its jurisdiction by the Respondent,
need not consider whether, and to what extent, the first two
contentions of the German Government’s submission would
also fall within the scope of the jurisdiction conferred upon
it by Article 72, paragraph 3, of the Geneva Convention.

Nevertheless, as the German Government has expressed
the opinion that the  Court’s jurisdiction covers disputes
concerning the stipulations of Division IT of Part III of the
Convention, and therefore also the articles cited by it in
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 27

support of its first two contentions, the Court desires to make
the following observations.

This opinion is based on the view that the League of
Nations’ guarantee, mentioned in paragraph 3 of the Preamble
to Division I, also extends to the provisions of Division Il.

The Court is unable to accept this opinion.

The Preamble in question runs as follows 1:

‘Whereas the Conference of Ambassadors decided,
on October 2oth, rg2r:

1. that the Treaty with regard to the Protection
of Minorities, etc., concluded on June 28th, 1919, between
the United States of America, the British Empire, France,
Italy and Japan of the one part, and Poland of the
other part, should be applicable to those parts of Upper
Silesia definitely recognized as part of Poland ;

2. that the principles of equity and the maintenance
of the economic life of Upper Silesia demand that the
German Government should be bound to accept, at
least for the transitional period of fifteen years dating.
from the definitive allocation of the territory, stipulations
corresponding to Articles I, 2, 7, 8, 9 (paragraphs 1 and
2), 10, rr and 12 of the said Treaty as regards those
parts of Upper Silesia definitely recognized as part of
Germany ;

3. that the provisions of the agreement to be concluded
between the German and Polish Governments in order
to put into force the above-mentioned principles, constitute
obligations of international concern for Germany and
Poland, and shall be placed under the guarantee of the
League of Nations in the same way as the provisions
of the Treaty of June 28th, 1919;

the two contracting Parties have agreed on the follow-
ing provisions... .”

The object of the Preamble is to show the purpose of the
provisions comprised in the first Division, and this appears
clearly from its terms (‘whereas the Conference of Ambassadors
decided.... the two contracting Parties have agreed on the.
following provisions....”). Then follow the provisions of the.
Division printed in parallel texts, one applying to Germany
and the other applying to Poland. The provisions in Articles

1 The English text of those passages of ‘the Decision of the Conference of
Ambassadors which are reproduced in the Preamble is taken from the League
of Nations Official Journal.

4
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 28

65 to 72 are a repetition of those contained in the Minorities
Treaty, which, in accordance with the Decision of the Confer-
ence of Ambassadors, Germany had to accept.

It therefore clearly appears that it is the provisions of
Division I itself which constitute the carrying out (or, accord-
ing to the terms of the Preamble, “the putting into force’’)
of “the above-mentioned principles laid down’ by the Confer-
ence of Ambassadors ?.

Had it been otherwise, it would have been possible to find
elsewhere in the Convention an expression of the idea that the
provisions of Article 72—-which unquestionably are there for
the purpose of more precisely defining what is to be under-
stood by the guarantee of the League referred to in the
Preamble to Division I—should also apply to. the provisions
of. Division II. But one searches in vain for an expression
of such an idea in the Convention which, far from putting
the numerous provisions of Division II on the same footing
as those of Division JI, draws a “very marked distinction
between them.

It is true that the resolutions by which the Council of
the League of Nations declared that it undertook the
guarantee of the provisions of the Geneva Convention are
so generally worded that they might lead to the supposition
that it was not intended to distinguish between the provisions
of the two Divisions. But such an inference cannot prevail
in face of the terms of the Convention. The fact that,
according to Division III, certain functions are conferred upon
the Council with regard to the provisions of Division II as
well, may moreover indicate that these provisions were con-
sidered as being guaranteed by the League of Nations, although
in a different manner from the provisions of Division I.

For these reasons, the Court is unable to accept a construc-
tion according to which the guarantee of the League of
Nations as defined in Article 72 of the Geneva Convention.
would also extend to the provisions of Division II.

1 In Annex 3 to the Recommendation made by the Council of the League
of Nations and accepted by the Conference of Ambassadors, the phrase which
in the English text corresponds to the phrase mettre en pratique of the
French text is “put into force” (mettre en vigueur).
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 29

*

The Court therefore concludes that it cannot allow the plea
to the jurisdiction raised by the Polish Government. But, as
has been stated above, the Agent for the Polish Government
also raised the objection that, by. virtue of Articles 149 and
157 of the Convention, “the matter had been settled by the
Council of the League of Nations which is the final authority
as regards measures to be taken”, and that its ‘‘decision could
not be subject to revision by the Court of International
Justice”.

If, as the Court thinks, this objection must be understood
as putting forward a plea on the ground that the German
submissions could not be entertained, the Court cannot con-
sider this plea as being well founded.

The ‘‘decision’ in question is the “Resolution” referred to
above, which the Council adopted on March 12th, 1927, -
passing on an appeal made by the German Association for
Polish Upper Silesia (Deutscher Volksbund für Polnisch Ober-
schlesien). It is consequently a resolution taken by virtue of
powers conferred upon the Council by Article 149 of the
Geneva Convention.

The situation arising from the co-existence of these powers
and of the jurisdiction conferred upon the Court by Article 72,
paragraph 3, has not been defined by the Convention.
But in the absence of any special regulation in this respect,
the Court thinks it appropriate to recall its earlier observation,
namely, that the two jurisdictions are different in character.

In any case, it is clear from the discussions which took
place before the Council that the latter did not wish to settle
the question of law raised by the German representative and
a solution to which is requested by the Application which
gave rise to the present proceedings. The Resolution specific-
ally states in paragraph V that: ‘The arrangement provided
for in paragraphs II, III and IV above shall be regarded as
an exceptional measure designed to meet a de facto situation
not covered by the Convention of May 15th, 1922”, and that
“it shall not be interpreted as in any way modifying the
provisions of that Convention”. And if there were still any
doubts left as to the scope of the Council’s Resolution, the
Council itself has dispelled them by specifically stating in the
JUDGMENT No. I2.—UPPER SILESIA {MINORITY SCHOOLS) 30

course of its meeting of December 8th, 1927, that the legal
question had not been settled. On this point, the Court.
refers to what it has set out above.

In the Counter-Case, the Agent for the Polish Government
has, in respect of the third German contention, submitted
observations which may be construed as making a reservation
with regard to the plea that the suit could not be entertained
by the Court. For he stated that he was not in a position
to express any opinion with regard to the last part (the third
contention) of the German submissions, because the German
Government had nowhere in its Case supplied an example
illustrating that contention and because, in the opinion of the
Polish Government, it is not incumbent upon the courts to
enunciate general principles otherwise than in regard to actual
facts before them. However, the Polish Government reserves
to itself the right of submitting its observations in the event
of its adversary making a more precise claim and adducing
concrete facts. The German Government having in its written
Reply adduced certain facts which in its opinion showed the
necessity for obtaining a decision by the Court in conformity
with that Government’s contention, the Agent for the Polish
Government has not in his written Rejoinder stated anything
in respect of that contention. In his pleadings before the
Court, he confined himself either to putting in issue the
existence of the facts invoked or to denying that these facts
could be attributed to the Polish Government, or that they
could be taken as demonstrating that there had been treatment
of a discriminatory character to the detriment of the German
minority schools in Polish Upper Silesia. There is thus no
actual plea of inadmissibility for the Court to consider. _

II.

Before considering the case on its merits, the Court deems
it necessary to establish what is the relationship existing
between the provisions of Division I of the third Part of the
Geneva Convention and those which are to be found in Divi.
sion II of the same Part. -

The Court in this respect recalls the fact that the provisions
of Division I are provisions the terms of which were settled
beforehand by the Conference of Ambassadors. They had to be
JUDGMENT No. I2:—-UPPER SILESIA (MINORITY SCHOOLS)  3I

accepted such as they were and subject to no modifications.
This is clear from the Preamble to Division I and from the
provision which is to be found in Article 72 under paragraph r.
These provisions constitute a separate category among the
provisions relating to the protection of minorities, and subse-
quent provisions entered into between the contracting Parties
cannot modify them or be construed as being contradictory
and thus diminishing the extent of the protection provided.
(See in this respect the Preamble to Division II quoted above,
which declares that the provisions of this Division are adopted
without prejudice to the provisions of Division I.)

The final Protocol signed by the Parties on the same day
as the Convention itself, by the terms of Article XV, further
accentuates the fact that the provisions of Division I should
not be overridden.

(TL ransla tion. | .
“None of the provisions of the Convention modifies in any
way the provisions of Articles 65 to 72.”

Article 65 confers upon some of these articles a ‘still more
predominant character when it lays down that the two con-
tracting Parties undertake “that the stipulations contained
in Articles 66 to 68 should be recognized as fundamental laws
and that no law, regulation or official action shall conflict or
interfere with these stipulations, nor shall any law, regulation
or Official action prevail over them’’. This provision is again
repeated in Article 73 with the further addition that “the
tribunals and: courts of justice including administrative,
military and extraordinary tribunals shall be competent to
examine legislative or administrative provisions in order to
ascertain whether they conflict with the stipulations of this
Part”.

In view of the particular and predominant character of the
provisions of Division I of the Convention, it follows that
any construction of the provisions of Division II which would
conflict with the meaning of the provisions of Division I must
be excluded. The stipulations of Division IT must be construed
in the light of the stipulations of Division I and not the
reverse. '
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 32

It follows from the proceedings in the present case that the
Governments concerned are not in agreement as to the prin-
ciple which, as regards the two ‘portions of Upper Silesia,
determines the question whether a person belongs or not to a
racial, linguistic or religious minority. Basing itself upon
Article 74, which prohibits the authorities from verifying or
disputing ‘the question whether a person does or does not
belong” to such a minority, Germany is of the opinion that
by this article the Parties have by common agreement adopted
the principle that this question must be left to the subjective
expression of the intention of the persons concerned, and that
this intention must be respected by the authorities even
where it appears to be contrary to the actual state of facts.

On the other hand, Poland considers that the question whether
a person does or does not belong to one of the said minorities
is a question of fact and not one of intention, and that such
is the true meaning of the provisions of Division I of the
third Part of the Geneva Convention, provisions which could
not be modified by those of Division II of that Part. If
Article 74 leads to the conclusion that the persons concerned
may themselves declare whether they do or do not belong to
the minorities in question, such a declaration must be in
accordance with the facts. A. person who, in a manner clearly
contrary to the facts, were to declare that he belongs to a
minority would, in the opinion ‘of the Polish Government, be
committing an abuse which could not be tolerated.

The Court is of opinion that Poland is justified in construing
the Minorities Treaty (the provisions of which, subject to
slight modifications of no importance in this connection, are
embodied as such in Division I of the third Part of the Geneva
Convention) as meaning that the question whether a person
does or does not belong to a racial, linguistic or religious
minority, and consequently is entitled to claim the advantages
arising under the provisions which the Treaty comprises with
regard to the protection of minorities, is a question of fact
and not solely one of intention. The Treaty became directly
operative over the whole of the territories which the Treaty
of Versailles transferred from Germany to Poland. Although
the Minorities Treaty does not specifically state what persons
belong to a minority, it must not, therefore, be inferred that
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 33

there exists a gap which must necessarily be filled by subse-
quent stipulations. The Treaty would fail in its purpose if
it were not to be considered as an established fact that
persons who belonged de facto to such a minority must enjoy
the protection which had been stipulated.

If this is the meaning which must be attributed to the
provisions of the Minorities Treaty embodied in Division I of
the third Part of the Geneva Convention with the purpose of
conferring upon them the character indicated above, it does
not, however, follow that the contracting Parties were unable
validly to agree to extend the rights provided as regards
minorities also to persons who do not in the normal course
come within the conception of a minority. It would not be in
conformity with a true construction of the provisions of the
Minorities Treaty nor of the provisions of Article XV of the
final Protocol referred to above, to consider as excluded the
extension of the advantages of protection stipulated on behalf
of minorities to. persons who in fact do not belong to a
minority. But, on the other hand, such an extension cannot
be presumed. On the contrary, there is a presumption that
the provisions of the Convention are in conformity with the
principles underlying the Minorities Treaty.

Among those of the articles of the Convention adduced by
the German Government in support of its contention, Art-
-icle 74 alone refers in general to the question whether a person
does or does not belong to a racial, linguistic or religious
minority. Article 131 solely deals with a special question,
that of the language of the pupil or child.

Article 74 runs as follows:

“The question whether a person does or does not

belong to a racial, linguistic or religious minority may
not be verified or disputed by the authorities.”

Does this stipulation provide a sufficient basis for the
construction attributed thereto by the German Government
and according to which it is a question of intention alone
(the ‘subjective principle’)? The Court does not think so.

In the first place it should be observed that the article does
not state in specific terms that it is a declaration by a person
which is decisive as to whether such person belongs to a
JUDGMENT No. I2.— UPPER SILESIA (MINORITY SCHOOLS) 34

minority, nor that such declaration must be a declaration of
intention alone and not a declaration determining what such
person considers to be the de facto situation in the particular
case. The prohibition as regards verification or dispute which
is comprised in the article can be quite easily understood
even if the construction placed upon it by Germany be
rejected. |

There is reason to believe that, in the conditions which
exist in Upper Silesia, a multitude of cases occur in which
the question whether a person belongs to a minority partic-
ularly of race or language does not clearly appear from the
facts. Such an uncertainty might for example exist, as regards
language, where either a person does not speak literary German
or literary Polish, or where he knows and makes use of several
languages, and, as regards race, in the case of mixed marriages.
If the authorities wish to verify or dispute the substance of a
declaration by a person, it is very unlikely that in such cases
they would be able to reach a result more nearly corresponding
to the actual state of facts. Such a proceeding on the part
of the authorities would, moreover, very easily assume in
public opinion the aspect of a vexatious measure which would
inflame political passions and would counteract the aims of
pacification which are also at the basis of the stipulations —
concerning the protection of minorities.

In the opinion of the Court, the prohibition of verification
and dispute has as its object not the substitution of a new
principle for that which in the nature of things and according
to the provisions of the Minorities Treaty determines member-
ship of a racial, linguistic or religious minority, but solely the
avoidance of the disadvantages—particularly great in Upper
Silesia—which would arise from a verification or dispute on the
part of the authorities as regards such membership. That the
principle has remained unchanged is further confirmed by
Article 131, which, as will be shown below, provides for a
declaration with regard to a question of fact (quelle est la
langue d’un élève ou enfant?) and not a declaration of intention.

It must be admitted that the prohibition of any verification
or dispute on the part of the authorities may lead to certain
persons, who, in fact, do not belong to a minority, having to
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 35

be treated as though they belonged thereto. That, in the
opinion of the Court, is a consequence which the contracting
Parties accepted in order to. avoid the much greater disadvant-
ages which would arise from verification or dispute by the
. authorities. If, according to what has been stated above, a
declaration which clearly does not conform to the facts is to
be considered as not in conformity with the Geneva Conven-
tion, it does not follow, as the Polish Government appears to
maintain, that the prohibition to verify or dispute ceases
to be applicable in such a case. The prohibition which is
expressed in unqualified terms cannot be subject to any
restriction. But it must not be inferred from this that the
construction given above, according to which the declaration
must on principle be in conformity with the facts, is therefore
of no value. It is indeed of some importance to establish
what is the situation at law.

Turning, then, to the second contention advanced by the
German Government, the Court recalls that this contention
implies that persons legally responsible for the education of a
pupil or a child have unfettered liberty “to choose the language
of instruction and the corresponding school for such pupil or
child, subject to no verification, dispute, pressure or hindrance
on the part of the authorities’.

The provisions which the German Government invoked in
support of the contention are, in addition to Article 74, the
interpretation of which.the Court has given above, Articles 106
and 131 of the Geneva Convention, the terms of which are
as ‘follows:

“Article 106.

§ x.

1. — Il sera créé une école minoritaire, sur la demande
d’un ressortissant, appuyée par les personnes légalement
responsables de l'éducation d’au moins quarante enfants
d'une minorité de langue, à condition que ces enfants
soient ressortissants de l’État, appartiennent à une même

5
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 36

communauté scolaire (Schulverband — zwiazek szkolny),
“aient l’âge où l’enseignement est obligatoire, et soient
destinés à fréquenter ladite école.

2. — Si quarante de ces enfants au moins appar-
tiennent à la même confession ou religion, il sera créé
sur demande une école minoritaire du caractère confes-
sionnel ou religieux demandé.

3. — Dans le cas où la création d’une école. mino-
ritaire n'est pas expédiente pour des raisons spéciales, il
sera formé des classes minoritaires.

$ 2.

Il devra être donné satisfaction aux demandes men-
tionnées aux alinéas x et 2 du paragraphe premier, dans
le plus bref délai possible et au plus tard au début de
l’année scolaire qui suivra la demande, à condition que
celle-ci ait été présentée neuf mois au moins avant le
début de l’année scolaire 1.

Article 131.

1. — Pour établir quelle est la langue d’un élève
ou enfant, il sera uniquement tenu compte de la décla-
ration verbale ou écrite de la personne légalement res-
ponsable de son éducation. Cette déclaration ne pourra
faire l’objet d’aucune vérification ou contestation de la
part des autorités scolaires.

1 Translation by the Registry :

Article 106.

§ 5.

1.—A minority school shall be established on the application of a national,
supported by the persons legally responsible for the education of at least
forty children belonging to a linguistic minority, provided that these children
are nationals of the State, that they belong to the same school district
(Schulverband—zwiazek szkolny\, that they are of the age at which education
is compulsory, and that the intention is that they should attend the said
schools.

2.—If at least forty such children belong to the same denomination or
religion, a minority school of the denominational or religious character desired
shall be established on application.

3.—Should the establishment of a minority school be inexpedient for
special reasons, minority classes shall be formed.

§ 2.

The applications mentioned in paragraphs 1 and 2 of §1 shall be complied
with as expeditiously as possible and not later than the beginning of the
school-year following the application, provided that the latter has been
submitted at least nine months before the beginning of the school-year.
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 37

2. — Les autorités scolaires devront de même s’abste-
nir d'exercer toute pression, si minime qu'elle soit, ayant
pour but le retrait de demandes de création d'institutions
scolaires de minorités 1.”

In order to indicate what is to be understood by “language
of instruction”, it is necessary to give also Article 132, which
is as follows: |

“Article 132.

$ I.

Par langue véhiculaire ou par langue considérée comme
matière d'enseignement, on entend la langue littéraire
correcte soit polonaise, soit allemande.

$ 2.

Là où la langue d’une minorité est la langue véhi-
culaire, elle l’est pour l’enseignement de toutes les matières,
sauf pour l’enseignement du polonais dans la partie polo-
naise du territoire plébiscité et pour l’enseignement de
l'allemand dans la partie allemande dudit territoire,
lorsque l’enseignement de ces langues fait partie du
programme scolaire.

$ 3.

Les cours minoritaires de la langue de la minorité
seront donnés dans cette langue?”

L Translation by the Registry:

“Article 131.

1.—In order to determine the language of a pupil or child, account shall be
taken of the verbal or written statement of the person legally responsible
for the education of the pupil or child. This statement may not be verified
or disputed by the educational authorities.

2.—Similarly, the educational authorities must abstain from exercising any
pressure, however slight, with a view to obtaining the withdrawal of requests
for the establishment of minority educational institutions.”

2 Translation by the Registry:

Article 132.

$ I.

By language for imparting instruction or language considered as a subject
of the curriculum is meant correct literary Polish or German as the case
may be.
JUDGMENT No. 12.—UPPER SILESIA (MINORITY SCHOOLS) 38

The Polish contention in the form in which it appears in
the alternative (éventuelle et subsidiaire) submission is, on the
other hand, that the persons legally responsible for the
education of the pupil or child are free ‘‘to declare what is the
language of the pupil or child”. This contention is a negation
of freedom of choice as regards language of instruction and the
corresponding school. It also follows from the proceedings
that Poland does not unreservedly accept that all verification
or dispute by the authorities is excluded as regards the
declaration.

Besides the articles quoted in the German submission, the
Polish Government relies on Article 69 of the Convention, the

first paragraph of which should here be recalled:

1. — En matière d’enseigne-
ment public, le Gouvernement
allemand accordera dans les
villes et districts où réside une
proportion considérable de res-
sortissants allemands de langue
autre que la langue allemande,
des facilités appropriées pour
assurer que dans les écoles
primaires l'instruction sera
donnée dans leur propre lan-
gue aux enfants de ces res-
sortissants allemands. Cette
stipulation n’empéchera pas
le Gouvernement allemand de
rendre obligatoire l’enseigne-
ment de la langue allemande
dans lesdites écolest.

1. — En matière d’enseigne-
ment public, le Gouvernement
polonais accordera dans les
villes et districts où réside une
proportion considérable de res-
sortissants polonais de langue
autre que la langue polonaise,
des facilités appropriées pour
assurer que dans les écoles
primaires l'instruction sera
donnée dans leur propre langue
aux enfants de ces ressortis-
sants polonais. Cette stipu-
lation n’empéchera pas le Gou-
vernement polonais de rendre
obligatoire l’enseignement de
la langue polonaise dans les-
dites écoles.

$ 2.

When a minority language is the language for imparting instruction, it
shall be used for the teaching of all subjects except for the teaching of
Polish in the Polish part of the plebiscite territory and for the teaching of
German in the German part of that territory, when instruction in these
languages forms part of the school curriculum.

§ 3.

Minority courses in the minority language shall be given in that Janguage.”

1 Translation by the Registry :

1.—Germany will provide in the
public educational system in towns
and districts in which a considerable

1.—Poland will provide in the
public educational system in towns
and districts in which a considerable
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 39:

That Government infers that the minority language schools,
classes or courses provided for by Article 105 of the Conven-
tion (see Annex) are only intended for pupils of a tongue.
other than Polish whose parents are also of that other tongue.
The Polish Government consequently considers that the decla-
ration provided by Article 131 for the purposes of establishing
what is the tongue of the pupil or child contemplates the ascer-
tainment of a fact and not the expression of an intention
or of a wish.

As regards the point whether Article 131 contemplates a
declaration which ascertains a fact and not an expression of an
intention or of a wish, the Court adopts the construction put
upon it by the Polish Government. The terms of the article
clearly bear this meaning (pour établir quelle est la langue
d'un élève ou d'un enfant). These terms are also completely
in harmony with the terms of Article 105 (enfants d’une
minorité de langue) as well as with those of Article 107
(élèves. ... qui.... appartiennent à une minorité de langue). This
construction is moreover in conformity with the meaning of
the words dans leur propre langue used in Article 69. The
Court does not find in the text of the Convention any grounds
for construing Article 131 as does the German Government, as
solely contemplating a declaration of intention or of a wish
that the instruction of a child or pupil should be given in
the minority language. On this point the Court refers also
to what it has stated above in regard to Article 74.

The Court having to adjudicate upon contentions submitted.
on the basis of the Geneva Convention, cannot attribute
any particular importance to the fact that the Voivode of
Silesia, in conformity with an opinion given by the President.
of the Mixed Commission, has struck out from the forms
for the requests provided for under Articles 106 and 107

proportion of German nationals of
other than German speech are resid-
ents, adequate facilities for ensuring
that in the primary schools the in-
struction shall be given to the children
of such German nationals through the
medium of their own language.
This provision shall not prevent the
German Government from making
the teaching of the German language
obligatory in the said schools.

proportion of Polish nationals of
other than Polish speech are residents,
adequate facilities for ensuring that
in the primary schools the instruction
shall be given to the children of such.
Polish nationals through the medium
of their own language. This pro-
vision shall not prevent the Polish
Government from making the teach-
ing of the Polish language obligatory
in the said schools.
JUDGMENT No. I2.—-UPPER SILESIA (MINORITY SCHOOLS) 40

the passage requiring a declaration as regards the ‘mother-
tongue” of the child. This action may moreover be explained
by the fact that the text itself of the articles in question does
not require a declaration on this point and that the Convention
does not employ the phrase langue maternelle (mother-tongue).

Nor does the Court attach much importance to the argu-
ment which the German Government drew from the attitude
adopted by the Polish Government during the negotiations
which took place between Poland and the Free City of Danzig
and which led to the Agreement of October 24th, 1021,
concluded less than one month before the commencement
of the negotiations with Germany relating to Upper Silesia.
According to the German Government, the Polish Government
had then demanded the adoption of the principle which the
German Government now maintains. The Court does not
find this to be quite correct. Poland then advocated two
things: (1) that the admission to the minority schools at
Danzig should not depend upon the condition that the child
should be both racially and linguistically Polish, but that it
should be sufficient for it to be either Polish by origin or
Polish by language; (2) that the declaration of the person
responsible for the education of the child should be decisive
as to whether the child was of -Polish tongue or of Polish
origin, any verification of the truth of this declaration by the
school authorities being prohibited. Poland thus claimed two
different bases each of which was to suffice for admission to
minority schools, namely, either the Polish origin or the Polish
tongue of the child. The second basis alone would seem to
have been adopted in the Geneva Convention. The request of
Poland in this respect appears to correspond perfectly with
the substance of the first paragraph of Article 131 of the
Geneva Convention and therefore cannot provide an argument
in favour of the construction of this article proposed by
Germany.

But although the conclusion drawn by the Court from the
terms of the Convention is that Article 131 contemplates a
declaration which on principle must refer to the existence of a
fact and not express an intention or a wish, that does not
exclude the possibility, when appreciating those facts, of
properly taking into account a subjective element. Indeed,
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 41

what is to be understood as a person’s tongue is not always
clear and beyond doubt; particularly when a child reaching
the school age is concerned, it is no doubt proper not exclu-
sively to take into account the language which the child
generally employs if the parents employ another language to
satisfy their cultural requirements and if it is that language
which they by preference consider as their own. What has
just been stated is particularly true as regards Upper Silesia,
considering the very special conditions which, according to the
information supplied in the course of the proceedings, appear
to exist there from a linguistic point of view.

The German contention raises yet another question: namely
whether, according to the Convention, the admission of a
pupil or child to the minority schools (classes or courses)
depends upon a declaration in accordance with Article 13r.

In this connection the Court observes that it seems to be
beyond doubt. that Article 69 does not imply an obligation
for the States in question to grant “‘appropriate facilities” for
instruction in the language of the minority to be given in
public primary schools to other pupils or children than those
whose language is that of the minority. But, according to
what has been stated above in regard to the relations between
‘the provisions of Division I and those of Division IT, it would
be unreasonable to construe these stipulations of the article
in question as being opposed to an extension by the Conven-
tion of the participation in the same advantages to other
pupils and children. The question therefore is whether the
Convention has provided for such an extension. The President
of the Mixed Commission considered that it was necessary to
distinguish between, on the one hand, requests for the purpose
of establishing a minority school or courses in a minority
language—with regard to which Articles 106 and 107 laid
down certain rules—and, on the other hand, simple requests
for the admission of a pupil to an existing minority school.
The latter, with regard to which the Convention has not
laid down any rules, are not, according to him, subject to
any formality or any condition, with regard to language. The
basis of this construction appears in the first place to be the
“subjective principle’? which, according to the German Govern-
ment, was laid down by Articles 74 and 131, but which
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 42

according to the above construction placed on these articles
by the Court cannot be inferred therefrom.

Another ground for this construction would appear to be
the right of equal treatment which Article 68 of the Conven-

tion guarantees to minorities;

as follows!:

Les ressortissants allemands
appartenant à des minorités
ethniques, de religion ou de lan-
gue, jouiront du méme traite-
ment et des mémes garanties
en droit et en fait que les au-
tres ressortissants allemands.
Ils auront notamment un droit
égal à créer, diriger et contrô-
ler à leurs frais des institutions
charitables, religieuses ou so-
ciales, des écoles et autres
établissements  d’éducation,
avec le droit d’y. faire libre-
ment usage de leur propre
langue et d'y exercer libre-
ment leur religion.

the terms of this article are

Les ressortissants polonais
appartenant à des minorités
ethniques, de religion ou de
langue, jouiront du même trai-
tement et des mêmes garan-
ties en droit et en fait que les
autres ressortissants polonais.
Ils auront notamment un droit
égal à créer, diriger et contrô-
ler à leurs frais des institutions
charitables, religieuses ou so-
ciales, des écoles et autres
établissements d'éducation,
avec le droit d’y faire libre-
ment usage de leur propre
langue et d’y exercer librement
leur religion.

Although this article has not been invoked in the German
submissions as regards the contention in question here, it
appears from the proceedings that the German Government
finds in Article 68 an argument to prove that there exists a
freedom to choose the minority school without any obligation

of making the declaration provided for by Article 131. The

Court therefore considers

argument.

1 Translation by the Registry:

German nationals who belong to
racial, religious or linguistic minorities
shall enjoy the same treatment and
security in law and in fact as the
other German nationals. In part-
icular they shall have an equal right
to establish, manage and control at
their own expense charitable, religious
and social institutions, schools and
other educational establishments, with
the right to use their own language
and to exercise their religion freely
therein.

necessary to examine this

Polish nationals who belong to
racial, religious ox linguistic minorities
shall enjoy the same treatment and
security in law and in fact as the
other Polish nationals. In particular
they shall have an equal right to
establish, manage and control at
their own expense charitable, religious
and social institutions, schools and
other educational establishments, with
the right to use their own language
and to exercise their religion freely
therein.
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 43

In the course of the oral proceedings the German Govern-
ment expressed the opinion that the principle of equal treat-
ment of all nationals laid down by Articles 67 and 68 of the
Convention would be violated if, as regards the mere admission
of a child to a minority school, a declaration containing
anything besides a mere request for admission were to be
demanded from the person responsible for the child’s education.
This reasoning appears to be as follows: no special declaration
is required for the admission of the child to a majority school ;
consequently, by virtue of the principle of equal treatment,
the same should be the case as regards admission to minority
schools. ,

The Court is unable to adopt this reasoning. It considers
that Article 67 (see Annex) has no relation to the question
set out above. As regards Article 68, it should be observed
that it cannot be construed leaving Article 69 out of consi-
deration. In laying down the obligation to grant appropriate
facilities for a child speaking the language of the minority
to be taught in public primary schools in its own language,
this article clearly shows that it is perfectly compatible with
the principle of the “same treatment” guaranteed by Article 68,
to restrict the enjoyment of these ‘facilities’ to children
whose language is the minority language. And if, to ensure
the observance of this rule, a declaration as to the language
of the child is required, that also cannot be regarded as a
violation of the principle of the ‘‘same treatment” established
by Article 68.

Article 69, in fact, bestows an advantage which is dependent
on the fulfilment of certain conditions; the fact that this
advantage is not obtainable if the conditions in question are
not fulfilled does not therefore raise any question of equality
of treatment. It follows from what has already been said that
a refusal to admit to minority schools (classes or courses)
children who, according to the declaration of the persons
responsible for their education, only speak Polish or in respect
of whom the declaration as to the child’s language is lacking,
cannot be regarded as contrary to the Convention.

If a declaration has been made, it must always be respected.
With regard to Article 131, as well as to Article 74, the Court
6
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 44

holds that the prohibition as regards any verification or
dispute does not cease to apply in cases where it appears that
the declaration is not in accordance with the facts. In regard
to this, the Court refers to what it has already said concerning

Article 74.

*
* *

Approaching now the third contention of the German
Government, the Court observes that Article 68 of the Conven-
tion is alone relevant in this connection. For Article 65
{see Annex), which the German Government has also cited,
adds nothing to the principles contained in Article 68, but
endows them with a peculiarly important and predominant
character. As regards Article 72, paragraph 2, and the Pre-
amble to Division II (see Annex), which are also cited, no
explanation has been given eriabling the Court to take them
into consideration.

According to the German contention, the measures in
question are those described in the original English version as
“singling out the minority schools to their detriment”. This
expression, in the opinion of the Court, means measures which
constitute a treatment of minority schools less favourable or
more unfavourable than the treatment accorded to other
schools, and a treatment which is at the same time of a
more or less arbitrary character.

In support of its contention, the German Government, in
its Reply, has alleged that, since the putting into force of the
Convention, the German minority schools have been, in most
cases, organized and maintained in face of strong opposition
on the part of the Polish authorities. It has stated that more
than 700 petitions emanating from members of the minority
who complain of arbitrary interference on the part of the
Polish authorities in the affairs of minority schools, are still
pending, and that seven collective petitions also exclusively
relating to minority schools, have been submitted to the
Council of the League of Nations, in accordance with Articles 149
and 157. In proof of its statement that the attitude of
the Polish authorities has been hostile to the minority schools,
the German Government has cited the fact that, in an Opinion
given on October 12th, 1927, the President of the Mixed
JUDGMENT No. IZ.—UPPER SILESIA (MINORITY SCHOOLS) 45

Commission, in regard to the enquiry ordered by the competent
authorities for the purpose of hearing all persons who had
asked for the establishment of a minority school at Gieralto-
wice, made the following statement :

“L’interrogatoire dut faire aux personnes légalement
responsables de l'éducation l'impression d’un essai de
pression destinée à les faire renoncer à la création d’une
école minoritaire, d’autant plus que Ja minorité est
engagée depuis des années dans une lutte permanente
avec les autorités sur le terrain de l’école minoritaire.
D'après l’article 131, alinéa 2, il est interdit aux autori-
tés d’exercer une influence, si minime qu'elle soit, en
vue du retrait de la demande faite dans le sens de
l’article 106; il est donc évident que les autorités compé-
tentes ont violé cet article.”

As examples of a partial attitude on the part of the authorities,
the German Government has also cited two special cases, one
relating to the attitude adopted by the police of Brzezie in
connection with a Christmas festivity arranged by the minority
school, and the other concerning the fact that in the commune
of Brzezinka, the school authorities had established the minor-
ity. school at a place situated about three quarters of an hour
away from the locality where most of the children entered
for the school lived, though premises could have been found
in that locality.

The Court considers that a generally hostile attitude on the ~
part of the authorities in regard to minority schools, an attitude
manifested by more or less arbitrary action, is not
compatible with the principle laid down in Article 68. The
Court, moreover, has found nothing in the documents and
statements submitted in the course of the proceedings which
would show that Poland questions, as not well founded,
Germany’s contention that any measure Singling out the

1 Translation by the Registry :

“The persons legally responsible for the children’s education must have
received the impression that, the enquiry was an attempt to exert’ pressure
to induce them to abandon the request for the creation of a minority school,
more especially seeing that the minority has been engaged for years in a
continuous struggle with the authorities in regard to the question of the
minority school. Under Article 131, paragraph 2, the authorities are for-
bidden to exercise any pressure, however slight, with a view to obtaining
the withdrawal of requests made under Article 106; it is therefore obvious
that the competent authorities have contravened this article.” - ‘
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 46

minority schools to their detriment is incompatible with the
equal treatment guaranteed by Article 68. On the other
hand, the Court does not intend to express an opinion on the
question whether the attitude of the authorities has, in fact,
been discriminatory, for it has not been asked for a decision
in regard to any concrete measure alleged to be of this character.

In these circumstances, the Court holds that it is not
incumbent upon it to pass judgment on the third of the
German contentions.

FoR THESE REASONS,

The Court,

having heard both Parties,
by eight votes to four,
gives judgment as follows:

(x) that the objections, whether to the jurisdiction or
respecting the admissibility of the suit, raised by the
Respondent, must be overruled ;

(2) that Articles 74, 106 and 131 of the German-Polish
Convention of May 15th, 1922, concerning Upper Silesia,
bestow upon every national the right freely to declare according
to his conscience and on his personal responsibility that he
does or does not belong to a racial, linguistic or religious
minority and to declare what is the language of a pupil or
child for whose education he is legally responsible ;

that these declarations must set out what their author
regards as the true position in regard to the point in question
and that the right freely to declare what is the language of a
pupil or child, though comprising, when necessary, the exercise
of some discretion in the appreciation of circumstances, does
not constitute an unrestricted right to choose the language in
which instruction is to be imparted or the corresponding
school ;

that, nevertheless, the declaration contemplated by Article 131
of the Convention, and also the question whether a person
JUDGMENT No. I2.—UPPER SILESIA (MINORITY SCHOOLS) 47

does or does not belong to a racial, linguistic or religious
minority, are subject to no verification, dispute, pressure or
hindrance whatever on the part of the authorities ;

(3) that the Court is not called upon to give judgment
on that portion of the Applicant’s submission according to.
which any measure singling out the minority schools to their
detriment is incompatible with the equal treatment guaranteed
by Articles 65, 68, 72, paragraph 2, and by the Preamble of
Division II of Part III of the Convention.

Done in English and French, the French text being author-
itative, at the Peace Palace, The Hague, . this twenty-sixth
day of April, nineteen hundred and twenty-eight, in three
copies, one of which is to be placed in the archives of the
Court, and the others to be forwarded to the Agents of the
applicant and respondent Parties respectively.

(Signed) D. ANZILOTTI, |
President.

(Signed) À. HammarskjOLp,
Registrar.

M. Huber, Former President, M. Nyholm, Judge, M. Negu-
lesco, Deputy-Judge, and M. Schiicking, National Judge,
declaring that they are unable to concur in the judgment
given by the Court and availing themselves of the right
conferred on them by Article 57 of the Statute, have delivered
the separate opinions which follow hereafter.

(Initialled) D. A.

(Initialled) À. H.