COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE A/B
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 61

APPEL CONTRE UNE SENTENCE DU TRIBUNAL
ARBITRAL MIXTE HUNGARO-TCHÉCOSLOVAQUE

(UNIVERSITÉ PETER PAZMANY
C/ ÉTAT TCHECOSLOVAQUE)

ARRET DU 15 DECEMBRE 1933
XXXme SESSION

1933

XXXth SESSION
JUDGMENT OF DECEMBER 15th, 1933

PERMANENT COURT OF INTERNATIONAL JUSTICE

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

FASCICULE No. 61

APPEAL FROM A JUDGMENT OF THE HUNGARO-

CZECHOSLOVAK MIXED ARBITRAL TRIBUNAL

(THE PETER PAZMANY UNIVERSITY
v. THE STATE OF CZECHOSLOVAKIA)

SOCIÉTÉ D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
208

PERMANENT COURT OF INTERNATIONAL JUSTICE

1933.
THIRTIETH (EXTRAORDINARY) SESSION. December 15th.

General List :
No. 58.

December 15th, 1933.

APPEAL FROM A JUDGMENT OF THE HUNGARO-

CZECHOSLOVAK MIXED ARBITRAL TRIBUNAL

(THE PETER PAZMANY UNIVERSITY
v. THE STATE OF CZECHOSLOVAKIA)

Award of the Hungaro-Czechoslouak Mixed Arbiival Tribunal
of February 3rd, 1933; tts correciness in regard to the question
of jurisdiction and on the merits. |

The “right of appeal’ to the Permanent Court of International
Justice under Article X of Agreement No. IT signed at Paris
on April 28th, 1930.

Article 250 of the Treaty of Trianon: conditions governing its
application.

° The University of Budapest, a juridical person of Hungarian
nationality (Art. 246 of the Treaty of Trianon). The University’s
vight of ownership in respect of certain estates situated in trans-
ferved territory. . Character of these estates as private property within
the meaning of the Treaty. Nature of the measures veferred to
in Article 250 of the Treaty of Trianon; cf. Article 232 and the
Annex following Article 233: question of “discrimination”. Sub-
jection of the property in question to discriminatory measures in
the form of compulsory administration and supervision within the
meaning of the Article. Right of the University to the restitution
of this property freed from the said measures, Articles 249 and 256
of the Treaty of Trianon ; Protocol signed at Paris on April 26th, 1930.

JUDGMENT.

Before: MM. Apatci, President; GUERRERO, Vice-President;
Baron ROLIN-JAEQUEMYNS, Count RosTWoROWwSsKI,
MM. FROMAGEOT, ANZILOTTI, Sir CEciL Hurst,
MM. Scutcxinc, NEGuLEsco, Jhr. vAN Evysinca,
M. Wane, Judges; MM. HERMANN-OTAVSKY and DE
TomcsAny1, Judges ad hoc.

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PETER PAZMANY UNIVERSITY 209

In the case submitted on appeal from judgment No. 221
delivered by the Hungaro-Czechoslovak Mixed Arbitral Tribu-
nal on February 3rd, 1933 (The Royal Hungarian Peter
Pézmäny University, of Budapest, v. the State of Czechoslovakia),

between
the Government of the Czechoslovak Republic, represented
by Dr. Antonin Koukal, as Agent,

and

the Royal Hungarian Government, represented by M. Ladislas
Gajzago, Envoy Extraordinary and Minister Plenipotentiary,
as Agent,

The Court,
composed as above,
delivers the following judgment:

By an Application instituting proceedings, dated May 3rd,
1933, and filed in the Registry of the Court on the following
May oth, in accordance with Article 40 of the Statute and
Article 35 of the Rules of Court, the Government of the Czecho-
slovak Republic, relying on Article X of Agreement No. II
signed at Paris on April 28th, 1930, concerning the settlement
of questions relating to the agrarian reforms and to the Mixed
Arbitral Tribunals, has brought before the Court an “appeal
from the judgment on jurisdiction and merits given by the
Hungaro-Czechoslovak Mixed Arbitral Tribunal in the case of
the Royal Hungarian Peter Pazmany University of Budapest
versus the State of Czechoslovakia (No. 221)’.

The Application, after thus indicating “the subject of the
dispute”, states “the facts which have given rise to it”, namely
the decisions embodied in the judgment of the Hungaro-
Czechoslovak Mixed Arbitral Tribunal of February 3rd, 1933,
whereby that Tribunal adjudicated upon claim No. 221 brought
by the Royal Hungarian Peter Pézmäny University of Buda-
pest against the State of Czechoslovakia and upon the objec-
tion to the jurisdiction lodged by the respondent State. The
Czechoslovak Government, by asking the Court to give notice
of the Application, pursuant to Article 40, paragraph 2, of the
Statute, to the Royal Hungarian Government, further indicates
who is the Party to the dispute before the Court in addition to
the Czechoslovak Government. Finally the Application formulates
the claim as follows:

“May it please the Court:

To adjudge and declare....

That, in its judgment No. 221 delivered on February 3rd, 1933,
the Hungaro-Czechoslovak Mixed Arbitral Tribunal wrongly decided

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PETER PAZMANY UNIVERSITY 210

that it was competent to take cognizance of the claim brought by
the Royal Hungarian Peter Pazmany University, of Budapest,
against the Czechoslovak State, under Article 250 of the Treaty
of Trianon;

That the Royal Hungarian Peter Pazmany University, of Buda-
pest, is not justified in claiming the restitution. by the Czecho-
slovak State of the immovable property specified in Section I of
the aforementioned judgment of the Hungaro-Czechoslovak Mixed
Arbitral Tribunal ; |

That the Czechoslovak Government is not bound to restore the
aforesaid immovable property to the Royal Hungarian Peter
Pâzmäny University of Budapest ;

Alternatively :
To declare the aforesaid judgment of the Hungaro-Czechoslovak -

Mixed Arbitral Tribunal null-and void;

Alternatively :
To modify the aforesaid judgment, and to dismiss the Applicant’s

claim ;

Alternatively:
To invite the Mixed Arbitral Tribunal to conform to the principles
laid down by the Court for the interpretation of Articles 250, 239,
249 and 256 of the Treaty of Peace of Trianon and of the Protocol
signed at Paris on April 26th, 1930, and to deliver a fresh judg-
ment in case No, 221, dismissing the Applicant’s claim ;

Alternatively :
To declare that the Czechoslovak State is not bound to give
effect to the judgment in question, and that it is absolved from
any obligation towards the Applicant in respect thereof.’’

According to the Application instituting proceedings before the
Court, the judgment of the Hungaro-Czechoslovak Mixed Arbitral
Tribunal of February 3rd, 1933, was notified to the Agent of
the Czechoslovak Government on February 13th, 1933.

On May gth, 1933, notice of the Application was given to
the Hungarian Government through the Hungarian Legation
at The Hague. On May 13th, 1933, the communications pro-
vided for in Article 40 of the Statute and Article 36 of the
Rules of Court were despatched to all States entitled to appear
before the Court. Furthermore, on May 18th, 1033, the
Registrar, pursuant to Article 63 of the Statute and Article 60
of the Rules, notified the States which, together with Hungary
and Czechoslovakia, had signed the Treaty of Peace of Trianon
of June 4th, 1920, and Agreement No. II of Paris of April 28th,
1930, of the institution of these proceedings by. the Govern-
ment of Czechoslovakia.

As the Court included upon the Bench no judge of the
nationality of the Parties, the Hungarian and Czechoslovak
Governments availed themselves of.their right, under Article 31
of the Statute, each to appoint a judge.

6
PETER PAZMANY UNIVERSITY 2IX

- By an Order made on May 16th, 1933, the Court fixed, in
accordance with Article 39 of the Rules, the time-limits for
the presentation of the Case, Counter-Case, Reply and Rejoinder
in the suit. By a second Order dated August 23rd, 1933,
made at the request of the Hungarian Government, the time-
limit originally fixed for the presentation of the Rejoinder by
that Government was extended until September r2th, 1933.
The various documents of the written proceedings having been
duly filed within the time-limits as finally fixed, the suit
became ready for hearing on September 12th, 1933.

The Czechoslovak Government, in its Case, confines its
submissions to a request to the Court to “decide in accordance
with the submissions formulated in the Application instituting
proceedings”, which it says that it maintains “in their
entirety’. Subsequently the Czechoslovak Government, in its
written Reply, whilst maintaining the main and alternative
submissions formulated in the Application and in the Case,
appends the following additional submissions :

“May it please the Court:

(a) whereas the Royal Hungarian Government has declared that
it only accepts the trial of the case by the Court so far as concerns
the question whether the impugned judgment of the Hungaro-Czecho-
slovak Mixed Arbitral Tribunal should be set aside or confirmed,

to give judgment, pursuant to the terms of Article 53 of the
Court’s Statute, on other submissions presented by the appellant
Government ;

(b) to reject the submissions presented by the Royal Hungarian
Government in its Counter-Case of July 13th, 1933;

(c) to declare that there is no occasion to depart from the general
tule of Article 64 of the Court’s Statute, which provides that each
Party shall bear its own costs;

(d) should the Court see fit to depart from the general rule in
the aforesaid Article 64 of the Statute, to order the respondent
State to pay the costs of the appeal.’’

The Hungarian Government, for its part, submits in its
Counter-Case that it may please the Court to adjudge and
declare :

“that the Court confirms the judgment of the Hungaro-Czecho-
slovak Mixed Arbitral Tribunal, dated February 3rd, 1933, on the
grounds stated therein, or others, in addition ;

S that it awards the costs of the appeal against the appellant
tate’.

In its written Rejoinder, this Government maintains all
its submissions as formulated in the Counter-Case.

In the course of public sittings held between October 23rd
and November 13th, 1933, the Court heard the observations,
statements, reply and rejoinder presented by:

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PETER PAZMANY UNIVERSITY 212
M. Koukal, Agent, on behalf of Czechoslovakia,

and M. Gajzago, Agent, on behalf of Hungary.

Pursuant to a decision of the Court taken on October 2oth,
1933, after deliberation, and conveyed to the Parties on the
same day, the observations to be presented by their Agents
at the beginning of the hearings were, in the first place,
to be confined to the quéstion of the nature of the juris-
diction conferred on the Court by Article X of Agreement
No. II signed at Paris on April 28th, 1930; after hearing
arguments on this question, the Court would then consider how
it would proceed. It should ‘be added that the Parties had
previously filed written observations on this same question in
connection with two other “appeal’’ cases which were at the
time before the Court but which were subsequently withdrawn;
in the present suit, the Parties had, in reply to a question
from the Court, expressly declared that they relied on these
observations 1.

After hearing the observations of the Parties on the nature
of its jurisdiction under Article X of Agreement No. II of
Paris, and after deliberation, the Court decided, on October 24th,
to' postpone its decision on this question until it had heard
the arguments on the merits. The Agents of the Parties were
then at once informed that upon the re-opening of the hearings,
on the following day, they would be called upon to argue the
merits of the case.

The Agent for the Czechoslovak Government, in the course
of his oral reply, asked that the Court should give a decision
“of principle on the question of its jurisdiction as a court of
appeal” and fix a time-limit within which he might formulate
his final submissions “having due regard to the decision so
taken by the Court”. He also stated in this connection that
it was impossible for him to formulate his final submissions
- “until the Court had given a decision on the question of the
jurisdiction conferred upon it by Agreement II of Paris’.

The Court, “its intention being to deliver a single judgment
upon both the nature of its jurisdiction and the merits of the
case”, decided “‘to accept the submissions of the Agent for the
Czechoslovak Government in the form in which they had been
presented”.

By this decision, which was announced at the hearing on
November 1oth, the Court gave to understand that, since its
intention was only to pass upon the question of the nature of
its jurisdiction in the judgment, if any, upon the merits,
there was no need for the Czechoslovak Government to
make a final choice, during the hearings, between the

1 See Publications of the Court, Series C., No. 68, pp. 209-226.
PETER PAZMANY UNIVERSITY 213

' submissions presented by it as alternatives designed to meet the
various solutions which might be envisaged.

In these circumstances, the Agent for the Czechoslovak
Government, at the conclusion of his oral reply, confined him-
self to asking the Court for judgment in accordance with the
“final submissions” presented by him in his first oral state-
ment. These submissions were as follows:

“May it please the Court to adjudge and declare:

I. That the Hungaro-Czechoslovak. Mixed Arbitral Tribunal, in
its Judgment No. 221 delivered on February 3rd, 1933, was wrong
in deciding that it was competent to adjudicate on the claim
lodged, under Article 250 of the Treaty of Trianon, by the Royal
Hungarian Peter Pazmany University of Budapest against the
Czechoslovak State ;

that the Royal Hungarian Peter Pazmany University of Budapest
is wrong in claiming from the Czechoslovak State the immovable
property enumerated in heading No. I of the aforesaid judgment of
the Mixed Arbitral Tribunal;

that the Czechoslovak Government is not bound to restore the
said immovable property to the Peter Pézmäny University of
Budapest ;

and accordingly :

To declare. the said judgment of the Mixed Arbitral Tribunal
null and void;

To reject, on the ground that the Hungaro-Czechoslovak Mixed
Arbitral Tribunal has no jurisdiction, the claim lodged by the
Royal Hungarian Peter Pazmany University against the Czecho-
slovak State with the Mixed Arbitral Tribunal:

alternatively : to amend the said judgment and dismiss the Appli-
cant’s claim ;

alternatively: to invite the Mixed Arbitral Tribunal to conform
to the principles laid down by the Court as to the interpretation
of Articles 250, 239, 249 and 256 of the Treaty of Trianon and of
the Protocol signed in Paris on April 26th, 1930, and to deliver a
new judgment in case No. 221 and to dismiss the Applicant’s
claim ;

alternatively: to declare that the Czechoslovak State is not
bound to comply with the judgment in question and is released
from all obligations towards the claimant.

II. To reject the submissions presented by the Royal Hungarian
Government.

III. To declare that there is no occasion to depart from the
general rule of Article 64 of the Court’s Statute, which provides
that each Party shall bear its own costs;

Should the Court see fit to depart from the general rule in the
aforesaid Article 64 of the Statute, to order the respondent State
to pay the costs of the appeal.’’

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PETER PAZMANY UNIVERSITY 214

The Agent for the Hungarian Government confined himself,
in the oral proceedings, to maintaining the submissions made
in the Counter-Case.

As annexes to the documents of the written proceedings,
numerous documents in support were filed on behalf of both
Parties 1.

Similarly, in the course of the oral proceedings, each Party
filed new documents with the consent of the other Party.

In this connection, on two occasions, the Court was called
upon to give decisions pursuant to Article 52 of the Statute,
in the following circumstances :

1.—Before the opening of the hearings on October 23rd,
the Czechoslovak Agent, in a letter dated October 22nd and
received on October 23rd, announced, with reference to Article 47
of the Rules, that he intended to adduce, further to the
evidence already produced in the course of the written pro-
ceedings, certain additional documents of which he gave a list;
due notice of this intention had been given to the Hungarian
Agent. Under cover of a letter dated October 24th and received
on October 25th, the Czechoslovak Agent filed in the Registry
all the documents in question except one; in this letter he
requested the Court to call upon the Hungarian Government
to file the originals of these documents as they must be in
that Government’s hands.

The Czechoslovak Agent’s letter was communicated to the
Hungarian Agent on October 25th; copies of. the documents
appended thereto were sent to him on October 26th, 1933.
Most of these documents were read out by the Czechoslovak
Agent at the hearings held between October 24th and Octo-
ber 28th, 1933.

It was not until the hearing on October 28th, at the con-
clusion of the oral statement of the Agent for the Czechoslovak
Government, that the Agent for the Hungarian Government
referred to Article 52 of the Statute, and asked the Court to
refuse to accept the documents in question, or alternatively
to treat them, not as evidence, but as an integral part of the
argument of the other side; subsequently, in reply to a ques-
tion from the President, he stated that he did not consent
to the production of these documents as evidence.

After hearing the Agent for the Czechoslovak Government
and after deliberation, the Court decided on October 30th, 1933:

i. Not to refuse to accept such of these new documents .
as had already been produced by the Czechoslovak Agent.

1 See list in the Annex.
10
PETER PAZMANY UNIVERSITY 215.

2. Not to invite the Hungarian Government to produce the
original text or a certified true copy, together with a transla-
tion, of the documents in question.

3. To refuse to accept the document of which the filing
had been announced by the Czechoslovak Agent but which had
not yet been produced by him.

This decision, which was announced at the hearing on
October 31st, 1933, and whereby the Court adjudicated not
only upon the objection lodged by the Hungarian Govern-
ment under Article 52 of the Statute, but also upon the request
made by the Agent for the Czechoslovak Government in his
letter of October 24th, was based upon the following consid-
erations :

According to the Court’s previous practice, if there is no
special decision fixing the time-limit contemplated by Article 52
of the Statute for the production of ‘new documents, this
time-limit has been regarded as expiring upon the termination of
the written proceedings; if, after a case is ready for hearing,
new documents are produced by one Party, the consent
referred to in that Article has been presumed unless the other
Party, after receiving copies of such documents, lodges an
objection; but in the absence of that Party’s consent, the
Statute allows the Court to refuse to accept the documents
in question but does not oblige it to do so. ;

In these circumstances, it is desirable that, at the opening
of the oral proceedings, the Court should know the views of
the two Parties with regard to the intended production of
new documents by one of them. For this reason, such an
intention should, if possible, be expressed early enough to
enable the other Party to intimate, before the hearings, whether
it gives or withholds its consent.

In this case, the Court applied these principles to the
document the filing of which had been announced but had
not been effected. The Court accepted the remaining docu-
ments in view of the circumstances in which they had been
submitted, and which are peculiar to this case, subject to
the usual reservation respecting the value which it might
decide to attach to them.

With regard to the request of the Agent of the Czecho-
slovak Government that the Court should call upon the
Hungarian Government to produce the originals of the new
documents cited, this was due to the mistaken idea that
what the Czechoslovak Government was bound to produce
was certified true copies of the originals; in point of fact,
it was only responsible for the conformity of the documents
which it had filed with the secondary sources which it had
quoted.

2 II
PETER PAZMANY UNIVERSITY 216

2.—In his oral reply, the Agent for the Czechoslovak
Government cited certain documents and publications not
previously filed and read extracts from them. Thereupon
the Agent for the Hungarian Government requested the
Court to refuse to accept any new document mentioned by
the other Party. The Czechoslovak Agent, however, for his
part, stated that he had produced no new document; and
in fact none had been filed with the Registry. The Court,
in adjudicating upon this request, after deliberation, confined
itself to the statement that it had before it no new document
within the meaning of Article 52 of the Statute and that,
consequently, it was not called upon to take a decision.
When Article 52 speaks of “documents nouveaux’? (“written
evidence’), it means documentary evidence. And, by denying
that he had produced any new documents, the Agent for
the Czechoslovak Government doubtless meant to indicate
that he did not intend the texts which he had cited to be
regarded as evidence.

The origin of the case before the Court is as follows:

On December 30th, 1923, the University of Budapest,
invoking Articles 246 and 250 of the Treaty of Trianon,
filed an Application, dated December 24th, 1923, bringing
before the Hungaro-Czechoslovak Mixed Arbitral Tribunal
a suit against the Czechoslovak Government regarding certain
landed estates which, as alleged by the University, belonged
to it, but which were situated in the territory transferred
from Hungary to the State of Czechoslovakia and had been
retained by the latter State.

The University claimed, inter ala, that the property in
question—the more important of which are the estates of
Vagsellye and Znidvaralja—should be restored to it, freed from
any measure of sequestration, retention or liquidation, and
from any other measure restricting its right of free disposition.

The Czechoslovak Government, the defendant, replied by
lodging a preliminary objection, dated November 2oth, 1926,
and filed on the 27th of that month. In its objection it
contended that “the claimant lacked the requisite legal capa-
city and that the Mixed Arbitral Tribunal had no jurisdic-
tion” ; it prayed the latter to adjudicate upon and to uphold
the objections in proceedings separate from those on the merits.

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PETER PAZMANY UNIVERSITY 217

The documents of the written proceedings which presumably
followed upon the University’s application have not been
communicated to the Court; nor have the “answer, reply
and rejoinder” which would appear to have been filed as the
result of the Czechoslovak Government’s objection. On the
other hand, the Parties have produced before the Court certain
of the statements made on either side in the course of the
hearings held in December 1931 in regard to this objection.
The Tribunal adjudicated upon the objection by a decision
of April 15th, 1932, after having received from each Party
fresh memorials which were filed in March and April 1932.
The Court has had before it the memorial filed by the Uni-
versity.

In this decision the Tribunal fixed a time-limit of two
months within which, the Parties were to submit written obser-
vations upon the documents and memorials filed since the
closure of the hearings held in December 1931. After receipt
of these observations and after oral argument, the Tribunal
would adjudicate “upon its jurisdiction, upon the legal capacity
of the claimant, upon the latter’s right of ownership and its
right to restitution of the property claimed’.

The new memorials were filed by the required date ; that of
the University has been communicated to the Court. Hearings
in the case were held in September and October 1932; they
led, in the first place, to a decision of October Ioth, whereby.
the Tribunal ordered the Parties to furnish additional evi-
dence before November 30th, 1932. Certain of the statements
made during the hearings in September and October, as also
the note submitted by the University pursuant to the decision
of October roth, have been brought to the knowledge of the
Court. Oral argument upon the new evidence was heard in
January and February 1933; certain of the statements made
on this occasion have been communicated to the Court.

On February 3rd, 1933, the judgment was rendered which
is referred to in the Application instituting proceedings before
the Court.

Before analysing this judgment and indicating the facts with
which it deals and on which it is based, it is well to give an
account of certain events which took place during the proceed-
ings before the Mixed Arbitral Tribunal.

1.—In accordance with Article 239 of the Treaty of Trianon;
the Mixed Arbitral Tribunals which were set up between the
respective Allied and Associated Powers, of the one part, and
Hungary of the other part—including therefore the Mixed
Arbitral Tribunal between Hungary and Czechoslovakia—were
composed of three members; of these, the President, who was
chosen by agreement between the two Governments concerned,
had to be a national of a country that remained neutral during

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PETER PAZMANY UNIVERSITY 218

the war, 1914-1918. The same Article provides, in paragraph (g),
that the High Contracting Parties agree to regard the
decisions of the Mixed Arbitral Tribunal as final and conclu-
sive. As a result of events which it is unnecessary to recount
here, this rule was modified by an agreement (“Agreement II’’)
signed at Paris on April 28th, 1930, by the signatory
Powers of the Treaty of Trianon—other than Japan, China,
Cuba and Siam—and also by Poland. This Agreement pro-
vided, so far as concerns the Hungaro-Czechoslovak Mixed
Arbitral Tribunal, that the latter should be increased by the
addition of two members, to be chosen by the Permanent
Court of International Justice from among the nationals of
countries which had been neutral during the war (Art. IX);
furthermore (Art. X), Czechoslovakia and Hungary agreed to
recognize, without any special agreement, a right of appeal
to the Permanent Court of International Justice from all
judgments on questions of jurisdiction or merits given “hence-
forth” by the Mixed Arbitral Tribunal in certain classes of
cases.

During the negotiations which preceded the conclusion of
the Agreement, a Protocol was signed, on April 26th, 1930,
between the Hungarian and Czechoslovak plenipotentiaries,
which refers to the present suit.

The Hungaro-Czechoslovak Mixed Arbitral Tribunal was
reinforced on May 15th, 1931, by the appointment of two
neutral members; it entered upon its duties, in its new com-
position, in July 1931. On July oth, the Tribunal adopted,
in the form of a Protocol, and as a consequence of the conclu-
sion of the above-mentioned Agreement of April 28th, 1930,
various changes in its Rules of Procedure; Article VI of the
said Protocol lays down that “the appeal provided for in
Article X of Agreement No. II signed at Paris on April 28th,
1930, shall exercise a suspensive effect”.

2.—Even before the opening of the hearings—which, as
already mentioned, began in December 1931—the Czechoslovak
Agent before the Mixed Arbitral Tribunal made a reservation
in regard to the participation of the Hungarian member of
this Tribunal in the examination of the case in question, on
the ground that the said judge fulfilled in the Budapest Uni-
versity duties which the Czechoslovak Government regarded
as incompatible with the functions of a judge in the case.
In a letter written on September 26th, 1932, just before the
opening of the second series of hearings (September 1932), the
Czechoslovak Agent requested the Tribunal to take note of
this incompatibility, to have the judge, who was thus
challenged, replaced, and in the meantime to suspend the
proceedings. In a decision given on September 28th, 1932, the
Court refused to comply with this request.

14
PETER PAZMANY UNIVERSITY 219

But as the judge who had been challenged himself declined to
sit in the case, he was replaced by the Hungarian deputy-judge,
who was present. The Czechoslovak Agent then requested: the
Tribunal, in view of the change in its composition, to recom-
mence the whole of the proceedings, and to annul, as invalid,
the above-mentioned judgment of April 15th, 1932. The Tribunal
held, however, that this judgment—though liable to revision,
as a decision on a point of procedure—was none the less valid
and must stand, and ordered the proceedings to be continued.
However, before the opening of the third series of hearings
(January 1933), the Hungarian deputy-judge fell seriously ill,
and became unable to sit. The Hungarian Government then
appointed a judge ad hoc to sit in the case. At the hearing
at which the President announced this, the Czechoslovak Agent
expressed the opinion that, in view of the new composition of
the Tribunal, and considering that the judgment of April 15th,
1932, was a decision on procedure, the proceedings were once
more brought back to the initial stage, with the consequence
that the question of jurisdiction could alone be examined.
The Tribunal did not agree with this view. However, while
confirming, once more, that the judgment of 1932 was defini-
tive and that the ruling which it contained, to the effect that
it was impossible to decide on the preliminary objections
lodged by the Czechoslovak Government without prejudging the
merits, must stand, the Tribunal imvited the Parties, in com-
pliance with the wishes of the Hungarian judge ad hoc, to
recapitulate, “in a brief statement, the whole of their argu-
ments and submissions’.

3.—As early as the first series of hearings (December 1931),
the Agent of the Hungarian Government before the Mixed
Arbitral Tribunal reserved the right of the “University Fund”
(of which more will be said later) to intervene in the action,
in the event of the said Fund being held to be the owner
of the property in dispute and to be a juridical person, separ-
ate from the University. The object of this reservation was
“to keep open the period of time allowed for intervention
under Article 29 of the Rules of Procedure” of the Tribunal.
The Czechoslovak Agent opposed the motion, on the ground
that the intervention was belated.

In a document dated November 15th, 1932—ie. at a date
between the second and third series of pleadings and within
the period allowed by the Tribunal in its Order of Octo-
ber roth, 1932, for the submission of further evidence—the Royal
Hungarian Director of Public Foundations applied for leave
to mtervene. But this application was of a contingent character
and subject to a condition precedent, viz.: “in the event of

. the Tribunal accepting the defendant’s alternative submis-

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PETER PAZMANY UNIVERSITY 220

sion’’—that is, the submission asking for a ruling that the
University, not being a juristic person, was not entitled to
appear before the Tribunal.

At the hearing on January 31st, 1933, the Czechoslovak
Agent declared that, as he had not been notified of the inter-
vention, he reserved his right to object to it, in accordance
with Article 30 of the Rules governing procedure before the
Tribunal. The Tribunal, however, observed that the application
to intervene had been submitted at the hearing, and that,
having regard to the conditional character thereof, it did not
feel called upon, for the moment, to decide as to its admis-
sibility. In its judgment of February 3rd, 1933, the Tribunal
stated that the conditional application for leave to intervene
had ceased to have any purpose.

*

These are the circumstances in which the Court is now
called upon to adjudicate upon the various aspects of the
suit brought before it by the Application of the Czechoslovak
Government of May 3rd, 1933.

The Court will examine in the first place whether it has
jurisdiction to entertain the present suit.

The Application is entitled an “Appeal from the judgment
of the Hungaro-Czechoslovak Mixed Arbitral Tribunal on the
jurisdiction and the merits in case No. 221 (Royal Hungarian
Peter Pdzmany University versus the Czechoslovak State)”.

The answer to the question under consideration depends
upon the interpretation of Article X of Agreement II of Paris
in relation to the Statute of the Court.

This Article reads:

“Czechoslovakia, Yugoslavia and Roumania, of the one part,
and Hungary, of the other part, agree to recognize, without
any special agreement, a right of appeal to the Permanent
Court of International Justice from all judgments on questions
of jurisdiction or merits which may be given henceforth by
the Mixed Arbitral Tribunals in all proceedings other than
those referred to in Article I of the present Agreement.

The right of appeal may be exercised by written application
by either of the two governments between which the Mixed
Arbitral Tribunal is constituted, within three months from
the notification to its Agent of the judgment of the said
Tribunal.’’
16
PETER PAZMANY UNIVERSITY 221

There can be no doubt that this Article confers juris-
diction upon the Court. It is a special agreement of submis-
sion inserted in a convention between States, in the present
case between Czechoslovakia and Hungary. By this agreement
the States recognize the jurisdiction of the Court in case of
disputes between them relating to certain judgments of the
Hungaro-Czechoslovak Mixed Arbitral Tribunal. The present
suit, which has been brought by Czechoslovakia against
Hungary in virtue of the Agreement, fulfils the conditions as
to the jurisdiction of the Court which are laid down by
Article 14 of the Covenant of the League of Nations, by
Article 34 of the Statute, providing that “only States or
Members of the League of Nations can be Parties in cases
before the Court”, and by Article 36 of the Statute, providing
that “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’.

As has been seen, Article X, paragraph 1, of Agreement
No. II of Paris confers on the Court jurisdiction as a court
of appeal. In the present case, the Court considers it unneces-
sary to go into the various problems connected with the
question of the nature of the jurisdiction thus conferred
upon it.

The fact that a judgment was given in a litigation to which
one of the Parties is a private individual does not prevent
this. judgment from forming the subject of a dispute between
two States capable of being submitted to the Court, in virtue
of a special or general agreement between them. In the dis-
pute between Czechoslovakia and Hungary, which forms the
subject of the present suit, the Czechoslovak Government
maintains that the Mixed Arbitral Tribunal wrongly declared
itself to have jurisdiction to adjudicate upon the claim for
the restitution of certain landed property situated in Slovakia
brought before the Tribunal by the Peter Pazmany University
under Article 250 of the Treaty of Trianon; it also contends
that this claim is not well-founded and that it is not bound
to make this restitution. This contention is disputed by the
Hungarian Government.

Thus there is a distinct point at issue between two States.

*

. Having thus established that it has jurisdiction in the
present case, the Court must observe that this jurisdiction
does not extend to certain objections which have been made
by the Czechoslovak Government in the present proceedings

17
PETER PAZMANY UNIVERSITY 222

before the Court and which, according to that Govern-
ment, relate to the procedure before the Mixed Arbitral
Tribunal.

According to the terms of Article X of the Paris Agree-
ment No. II, the Parties agree to submit to the Court
“questions of jurisdiction or merits’. In view of the fact that
its jurisdiction is limited by the clear terms of this provision,
the Court has no power to control the way in which the
Mixed Arbitral Tribunal has exercised its functions as regards
procedure.

%
* *

As to the merits of the case, the essential facts may be
summarized as follows:

By a Deed of May rath, 1635, Cardinal Peter Pézmäny,
Archbishop of Esztergom and Prince-Primate of Hungary,
made over 100,000 Hungarian florins in cash and _ securities,
to the Rector of the Jesuit College of Nagyszombat for the
creation at the College of a “University of Studies”. The
income from this sum was to provide the. necessary buildings
and the maintenance of professors. A start was to be made
with chairs of philosophy and catholic theology.

The Cardinal petitioned for the approval of the University
by the King of Hungary, in the capacity also of Elected
Emperor of the Romans. In this connection he referred to the
University as a Studium generale, and, according to contem-
porary law, the creation of a Studium generale appears to have
required the sanction of the Pope or the Emperor. The
Emperor, Ferdinand II, gave his approval by the Deed of
October 18th, 1635; at the same time he confirmed the above-
mentioned Deed of the Cardinal and conferred upon the Uni-
versity the privileges usual in the case of any school, Studium
generale, academy or university of the Roman Empire.

A few years later—in 1642 and 1665—Emeric Lésy and
George Lippay, two of the successors of Pazmany in the office of
Archbishop of Esztergom, in their wills made bequests for the
foundation of a Faculty of Law at the University (Academy)
of Nagyszombat, as shown by a Deed drawn up by their
executor Szegedy, Bishop of Vac, dated January 2nd, 1667.

A century passed. In the reign of Queen Maria Theresa, the
University of Nagyszombat received another donation from the
Queen herself. On July 17th, 1769, the Queen, with a reference
to “Law XII of the year 1548”, presented to the University,
“as a perpetual endowment and foundation’’, an abbey at

18
PETER PAZMANY UNIVERSITY 223

Dunañfôldvér that had become vacant by the death of the
Landgrave of Hesse with all its property and temporal rights,
“so that the University of Nagyszombat shall possess this
abbey by perpetual and irrevocable right”, subject to certain
charges upon the income. Law XII of 1548 regulated the
manner in which the “landed property and income of aban-
doned monasteries and cloisters’’ was to be employed, namely,
for religious and educational purposes. |

In 1773 the Order of Jesuits was dissolved and it became
necessary to reorganize the teaching hitherto entrusted to that
Order. It was then that, by the Deed of February 13th, 1775,
Queen Maria Theresa gave to the University of Nagyszombat
the property that had previously belonged to the Jesuit College
in that town, the College mentioned in Cardinal Pézmäény’s
Deed of Foundation. This property included most of the
estates to which the dispute before the Mixed Arbitral Tri-
bunal relates (estates of Vägsellye and Znidévadralja); it had
come into the possession of the Jesuit College by a gift of
the Emperor Rudolph II, King of Hungary, dated May roth,
1586, made in virtue of his right of patronage; the property
had become vacant “in fact and in law’ through death.

Queen Maria Theresa’s letter cites the above-mentioned
Law XII of 1548 and “Our supreme right of patronage as
King of Hungary’, and it declares that the property is given.
to and conferred upon the University ‘‘to possess, to have
and to hold as a perpetual endowment and foundation”,
subject to the charges attaching to it. At the same time,
thanks to the additional funds resulting from Queen Maria
Theresa’s donation, a Faculty of Medicine was created at the
University.

In 1777 the University was transferred from Nagyszombat
to Buda. Simultaneously, and as the result of a general
reorganization of teaching (the Ratio educationis of the same
year), certain administrative changes were brought about ;
direct control was provided and the management of the
University was placed in the hands of a Royal Council, acting
in the King’s name. In view of this removal and administra-
tive reorganization, Queen Maria Theresa, by a Deed of-
March 25th, 1780, ‘‘confirmed and, so to say, renewed” in favour
of the University of Buda the privileges formerly conferred
upon the University of Nagyszombat. By the same deed,
known as ‘Inaugural letters patent”, the Queen confirmed
the earlier donations to the Nagyszombat University, in par-
ticular the gift of February 13th, 1775, which included the
property now in issue before the Mixed Arbitral Tribunal.
At the same time she approved certain exchanges of property

3 19
PETER PAZMANY UNIVERSITY 224

between the University and a body called the “Educational
Fund”. Lastly, the Queen presented to the University, as a
perpetual endowment and foundation, and again in virtue of
Law XIT of 1548, certain other estates that had fallen vacant
through the death of their owners.

Queen Maria Theresa. was succeeded in 1780 by Joseph II.
In 178r the University was solemnly installed (“introduced in
the right of ownership’) in the possession of inter alia the
Vagsellye estate, in accordance with the law in force and in
virtue of the letters of investiture and installation signed by
the King for this purpose. Joseph II took various measures
relating to the University, but most of them were revoked,
either by himself, shortly before his death in 1790, or by his
successor, Leopold II, on the grounds that the former had
never been crowned King of Hungary. Nevertheless, the
removal of the University from Buda to Pest, ordered by
Joseph II in 1783, and the ancillary arrangements, held good.

On January 20th, 1804, King Francis I (the Emperor Fran-
cis II) issued a ‘‘deed of new donation” in favour of the Uni-
versity now established at Pest; by this deed the King again
gave to the University, “as a perpetual endowment and founda-
tion”, the same property, nier alia, as had been given in
1775 and confirmed in 1780, and which was in issue before
the Mixed Arbitral Tribunal. This “new donation” was occa-
sioned by the fact that it had been found impossible to carry
out the exchanges contemplated in 1780. The deed of new dona-
tion was followed by an order of investiture, dated August 17th,
1804, and the University was installed as owner of the
Zniôväralja estate in the same year.

In 1806 new Regulations on public education and scientific
studies were promulgated for the Kingdom of Hungary.
These Regulations, which (leaving out of account the short-
lived reforms of Joseph II) replaced those issued by Queen
Maria Theresa in 1777, related, among other things, to the
administration of the University’s property. Francis I had
wished to entrust the administration to the University Senate,
but it was left under the control of the Vice-Regal Council in
accordance with a report submitted by the Council to the
King in 1802.

The events which occurred about 1848 led to somewhat
substantial changes in Hungarian law and in the administra-
tive organization of the University.

In the first place, the nature of landed property rights was
modified. Under old Hungarian law, all land throughout the
country belonged to the Royal Hungarian Crown as principal
owner, and the King disposed of it by “royal donations” to

20
PETER PAZMANY UNIVERSITY 225

private families or to corporations. The title derived from these
gifts, which were in principle irrevocable, took the place of a
right of ownership. Property thus donated reverted to the Crown
upon the extinction of the donee family or juridical person
or upon commission of an act of felony, and the King had
then to dispose of it afresh. This reversion of donated property
was known as escheat (droit d’aviticité). It was abolished in
1848 by Law XV and donees at that time in possession of
landed property became owners of it in the ordinary sense of
the word.

Secondly, Law XIX of 1848 placed the Hungarian univer-
sities directly under the authority of the Minister of Education.
This measure, which was the outcome of the introduction
into Hungary of the modern parliamentary system, abolished
the control of the Vice-Regal Council, which had administered
the University since the reforms of Queen Maria Theresa in
1777. Furthermore, the internal management of university
affairs was amended under the absolutist system from x849 to
1867, by application of the Organic Statute of September 30th,
1849 (University reform of Count Thun).

In 1865 the administration of the property of the University
was restored to the Vice-Regal Council, which continued to
exercise it until 1867, when the Parliamentary system was
re-established. Since that date the property has again been
administered, as before, through the Board of Public Founda-
tions. The duties of the latter were defined in a Service
Regulation of September 27th, 1867, of which further mention
will be made.

In 1869 it appeared that the revenue from the property
of the University (known as the “University Fund’, a term
which, in the documents submitted to the Court, is first met
with in some which date from the late xvirith century) would
not suffice to meet the requirements of the year 1870. The
Government therefore asked Parliament to grant the Univer-
sity a subsidy from the State. In conformity with a law of
1870 (Law XVIII) on the creation and functions of the Hun-
garian Court of Accounts, an extract from the University
budget was thereupon included in the budget of the Ministry
of Education and in the State budget; this practice has been
observed ever since.

In 1914 the estate of Neczpél, the last of the property
claimed by the University before the Mixed Arbitral Tribunal,
was acquired for the “University Fund”, with the permission of
King Francis-Joseph, by an ordinary contract of purchase.

27
PETER PAZMANY UNIVERSITY 226

To this short account of the University’s history and of the
principal estates in question, it should be added that the
system of land protocols or land registers, introduced in
Hungary in 1855, was confirmed after the return of constitu-
tionalism in 1867. It was extended by later laws, in particular
those of 1870 and 1886.

Then came the War of 1914-1918 and the events out of
which arose the proceedings instituted by the University of
Budapest against the Czechoslovak State before the Mixed
Arbitral Tribunal. The Court has been given but little informa-
ation about the real nature of these events. The Agent for
the Hungarian Government furnished an account of them in
his oral argument. The Czechoslovak Agent, in answer to
a question on the same subject by one of the judges, said
he would deal with it later. As he did not do so, the Court
assumes from his silence that he does not desire to dispute the
facts alleged by the Hungarian Agent in his argument.

According to this statement, forces of the Austro-Hungarian
army which had become Czechoslovak penetrated before and
after November 3rd, 1918, into the northern territories of
Hungary. They were followed by Czechoslovak civil authorities,
who took the place of the Hungarian authorities. Thereupon,
amongst other Hungarian property, possession was taken of
the property of the University (or “University Fund’’) in Slo-
vakia, and it was placed under the management and supervision
of the “Central Commission for property of the Roman Cath-
olic Church” in Slovakia. The entry into force of the Treaty of
Trianon on July 26th, rg21, made no change in this situation.

Accordingly, the University, which, as the Application of
December 24th, 1923, shows, was not very fully informed about
the fate of its property, decided to institute proceedings before
the Mixed Arbitral Tribunal, claiming its restitution under
Article 250 of the Treaty of Trianon.

In its judgment of February 3rd, 1933, on the claim, the Mixed
Arbitral Tribunal first examined seriatim the history of the Buda-
pest University and its administration ; next, the personality in
law of the University, its nationality and its capacity to appear
before the courts; the University’s right to the ownership of
the property im issue and the nature and import of the meas-
ures taken in respect of that property by the Czechoslovak
authorities ; finally, the effect of the provisions in the Treaty
of Trianon cited in the case before the Mixed Arbitral Tribu-
nal. On the basis of that examination, the operative part of
the Tribunal’s judgment decided as follows:

“(a) that it [the Tribunal] is competent to take cognizance
of the claim under Article 250 of the Treaty of Trianon;

22
PETER PAZMANY UNIVERSITY. 227

(6) that the Czechoslovak Government must restore to the
applicant University the immovable property claimed by the
latter, as specified in Section I of the judgment, freed from
any measure of transfer, compulsory liquidation or sequestra-
tion, and in the condition in which it was before the applica-
tion of the measures in question;

(c) that on the remaining submissions in the claim, the
proceedings will continue before the Tribunal, in accordance
with the rules of procedure ;

(d) that the Tribunal reserves the question of costs’’.

This is the decision by the Mixed Arbitral Tribunal referred
to in the Application by which the Czechoslovak Government
brought the present case before the Court.

*
* %

The Czechoslovak Government disputes the correctness of

the Mixed Arbitral Tribunal’s judgment, both as regards the
jurisdiction of that Tribunal and as regards the merits.

| Speaking generally, the Tribunal’s jurisdiction is governed
by Article 239 of the Treaty of Trianon; paragraph (6),
sub-paragraph 1, of that Article is worded as follows:

“The Mixed Arbitral Tribunals established pursuant to para-
graph (a) shall decide all questions within their competence
under Sections III, IV, V and VII.’

The terms of the above clause do not however exclude the
possibility of articles conferring jurisdiction on the Mixed
Arbitral Tribunals being found in other sections of the Treaty,
and in particular in Section VIII of Part X. This is the
section which contains the special provisions in regard to the
transferred territories; some of its stipulations were added as
a result of the observations of the Hungarian delegation at
the Peace Conference.

It was on the basis of an article in Section VIII of Part X
of the Treaty of Trianon that the University brought its claim
before the Tribunal. The provision in question is Article 250,
which it may be well to quote here:

“Notwithstanding the provisions of Article 232 and the
Annex to Section IV, the property, rights and interests of
Hungarian nationals or companies controlled by them situated
in the territories which formed part of the former Austro-
Hungarian Monarchy shall not be subject to retention or liquida-
tion in accordance with these provisions.

Such property, rights and interests shall be restored to their
owners freed from any measure of this kind, or from any other
measure of transfer, compulsory administration or sequestration,
taken since November 3rd, 1918, until the coming into force

23
PETER PAZMANY UNIVERSITY 228

of the present Treaty, in the condition in which they were
before the application of the measures in question.

Claims made by Hungarian nationals under this Article
shall be submitted to the Mixed Arbitral Tribunal provided
for by Article 239.

The property, rights and interests here referred to do not
include property which is the subject of Article 191, Part IX
(Financial Clauses).

Nothing in this Article shall affect the provisions laid down
in Part VIII (Reparation), SectionI, Annex III, as to property
of Hungarian nationals in ships and boats.”

The claims which may be submitted to the Tribunal in
virtue of this Article must, therefore, be claims made by Hun-
garian nationals, in respect of property, rights and interests
which belong to them, and of which they have been deprived
as a result of the measures referred to in this Article.

The Court does not feel called upon to deal separately with
the question of the Tribunal’s jurisdiction and of the merits,
i.e. whether the University was entitled to have the property
restored to it. It will examine whether the conditions required
by Article 250 were fulfilled in this case, and will then,
according to the conclusions it reaches, proceed to draw the
necessary inferences for the decision of the case.

The first condition to be fulfilled is that the claim must be
submitted by a Hungarian national.

The sense in which the term “Hungarian national” in
Article 250 of the Treaty of Trianon is to be understood is
determined as follows by Article 246 of that Treaty:

“Of the individuals and juridical persons previously nationals
of the former Kingdom of Hungary, including Bosnia-Herze-
govinians, those who acquire tpso facto under the present
Treaty the nationality. of an Allied or Associated Power are
designated in the provisions which follow by the expression
‘nationals of the former Kingdom of Hungary’; the remainder

>»?

are designated by the expression ‘Hungarian nationals’.

The question which arises in regard to this point, and on
which a great .part of the discussion turned, both before the
Tribunal and before the Court, is whether the University is a
juridical person.

The Czechoslovak Government denies this. It argues that
even if one admits—though the said Government does not

24
PETER PAZMANY UNIVERSITY 229

consider it proved—that the University was, at some period
in its history, a juridical person, it lost that status as a result
of its “nationalization’”’, a process which was commenced in the
time of Queen Maria Theresa and has continued by successive
stages; the effect of this “nationalization” has been—it is
argued—to merge the University’s personality in law in that of
the Hungarian State.

The Court holds that this argument is not well-founded.

It appears that the University enjoyed a personality in law
from the time of its foundation, as a consequence of the Deed
of May trath, 1635, by which Cardinal Pazmany transferred
certain sums of money to the Rector of the Jesuit College
at Nagyszombat for the purpose of creating a University in
that town. The Charter, or Bull, issued by Ferdinand II on
October 18th of the same year, in his capacity as Roman
Emperor and King of Hungary, not only confirmed the Deed
of Cardinal Pazmany and invested the University which the
latter had created with all the privileges of a Studium gene-
vale—privileges which undoubtedly, at that time, included civil
capacity, or personality—-but it also made express reference to
the endowment and the revenues of the University. Moreover,
it is hardly possible to regard the University—as the Czecho-
slovak Government has contended at any rate in an earlier
stage of the procedure—as a school of the Jesuit Order.
Such a view, even if it were compatible with the Deed of
Cardinal Pézmäny and the Imperial Charter, would be in
conflict with the terms of the Deed of Donation of July 17th,
1769, by which Queen Maria Theresa took the University ©
“ander her gracious protection and direction”, and bestowed
on it the domain of the Abbey of Dunafôldvér under the
system of royal donations. As the Order of Jesuits had
not yet been dissolved in 1769, the donation would have
had to be made to that Order if the University had been
merely a Jesuit school and had not enjoyed personality of
its own.

Whatever may be the exact date at which the University
acquired personality .in law in accordance with the law at that
time in force in Hungary, it is sufficient to note that it was
undoubtedly regarded as enjoying such personality at the end of
the xvinith and in the beginning of the xixth century. In regard
to that point, the Court has carefully examined the relevant
documents, and finds it beyond doubt that the University was at
that time considered as a juridical person capable of receiving
donations and of owning property. These documents include
the donation made by Queen Maria Theresa on July r7th,
1769, referred to above; the donation of February 13th, 1775;
the “Inaugural letters patent’ of March 25th, 1780, by
which the Queen made other donations to the University, and

25
PETER PAZMANY UNIVERSITY 230

confirmed the former donations; the Deed of New Donation
of Francis I, dated January 20th, 1804, confirming all the
previous royal donations; the various instruments by which
the University was duly installed, pursuant to royal letters
of investiture and installation, in the ownership and posses-
sion of the domains that had been granted to it.

It remains to be seen—-and it is on this argument that the
Czechoslovak Government appears now mainly to rely—whether,
at any subsequent period, the University lost its personality.

No legislative enactment or other measure abolishing the
University’s personality in law has been communicated to
the Court. The Hungarian Government categorically denies the
existence of any such measure, and produces in support a
certificate from the Royal Minister of Justice, dated February 2oth,
1932, issued in virtue of Law LIV of rg1z concerning the put-
ting into force of the Code of Civil Procedure; Article ror,
paragraph 2, of this law authorizes the Minister to certify
that “there is no law, or other written regulation, in force in
the country governing a given legal situation”. The Czecho-
slovak Government does not, indeed, allege that any such law
or written regulation exists, or ever existed, in Hungary.

The contention of the Czechoslovak Government is that the
University was transformed, in the course of its history, by
successive stages, into a State establishment, and. that its
personality became merged in that of the State. In support
of this view the Czechoslovak Government relies on, inter
ala, the instruments by which Queen Maria Theresa placed
the University under the supervision and direction of the
State; Law XIX of 1848, which placed the University directly
under the authority of the Minister of Public Education ;
the intervention of the State, as a result of the University
reform of 1849, in all matters concerning the legal status of
the professors, the administration of the University property ;
and the inclusion, in 1870, of the University’s budget in that
of a Government department and its subsequent incorpora-
tion in the general State budget.

The Hungarian Government does not dispute these facts,
but it contends that they have not resulted in abolishing the
University’s personality in law.

It is not necessary for the Court to go into the question
whether, under Hungarian law, personality in law can be
abolished, otherwise than by an express provision, embodied in
a law or issued by the competent authority. It is sufficient
for it to point out that such abolition could, in any case,
only result if the provisions in force were found to be really
incompatible with the possession of personality in law; no

26
PETER PAZMANY UNIVERSITY 231

such incompatibility has been proved, and as a result of its
investigation the Court has reached the conclusion that no
such incompatibility exists.

It should be observed, in this connection, that when one
speaks of the personality in law of the University, all that is
meant is purely and simply its capacity in private law, that
is to say, its capacity to be the owner of movable or immov-
able property, to receive legacies or donations, to conclude
contracts, etc. A capacity of that kind is in no way incon
sistent with very extensive State supervision of the Univer-
sity’s activity in the sphere of science and education. The
Czechoslovak Government has itself contended that what it
describes as the “nationalization” of. the University took
place, for the most part, under the reign of Queen Maria
Theresa; and yet it was Queen Maria Theresa herself who
made the most important donations to the University, and
who did so in the very same deeds in which she proclaimed
her right of direction and supervision over the institution.

- Again, it is scarcely necessary to point out that the capacity
to possess civil rights does not necessarily imply the capacity to
exercise those rights oneself. No argument against the Uni-
versity’s personality in law can therefore be deduced from the
fact that it did not enjoy the free disposal of the property in
question. For this reason, the Court cannot attribute any
relevance to the insertion in 1870 of the revenues of the
University property in the budget of the Ministry of Public
Worship and Education, nor to their insertion, subsequently,
in the general budget of the State, nor to the measures which
deprived the University of its right to administer its estates
for itself, and entrusted their. administration, at first, to public
authorities, and finally (in 1867), after an interregnum, once
more to the Board of Public Foundations.

The Court does not think it necessary to dwell at any
length on the other arguments advanced by the Czechoslovak
Government’s Agent, particularly in the oral arguments, and
which are based on more or less authoritative individual opin-
ions of Hungarian authors and politicians. In most cases
these opinions were expressed in connection with proposed
changes in the existing situation of the University’s property,
and were thus in the nature of political declarations which
have nothing to do with the legal issue submitted to the
Court. But even were it otherwise, and if there were some
legal opinion—whether private, semi-official or official—which
might really be regarded as favouring the Czechoslovak Govern-
ment’s. contention, such an opinion could not possibly prevail
over all the clear, precise and concordant documents which
bear witness to the University’s personality in law, or
over the inability of the Czechoslovak Government. to point

4 27
PETER PAZMANY UNIVERSITY 232

to a single legislative or administrative enactment, or indeed
to any rule of law, which is really incompatible with the Uni-
versity’s personality in law.

*

The University being a juridical person, its status as a Hun-
garian national, within the meaning of Articles 246 and 250
of the Treaty of Trianon, is beyond doubt.

It remains to be considered whether the University had the
right itself to submit a claim to the Mixed Arbitral Tribunal
for the property in question.

In the view of the Czechoslovak Government, the Service
Regulation of September 27th, 1867, for the Royal Board of
Public Foundations deprived the University of the right to
submit a claim to the property in dispute; that right belonged
—it is contended—solely to the Board of Public Foundations.

The Court does not think it necessary to examine whether
the Regulation of September 27th, 1867, really bears the
construction which is placed on it by the Czechoslovak Govern-
ment, a construction. which is disputed by the Hungarian
Government. Though that Government admits that it is the
Board of Public Foundations which as a rule is the University’s
legal representative, it relies on the fact that the University is
also entitled to appoint other representatives. Whatever may
be. the purport and effects of the provisions adduced by the
Czechoslovak Government, the purpose of the Regulation was to
maintain the integrity of the property in the public interest, and
it is with that object that it confers certain powers on the Board
of Public Foundations. The action brought by the University
before the Tribunal was precisely intended to maintain the
integrity of its property, and that is the very object that the
Regulation has in view. It would therefore have appertained :
to the Hungarian Government, as represented by its Agent
in the proceedings before the Mixed Arbitral Tribunal, or to
the Board of Public Foundations, to point out the alleged
incapacity of the University. But not only did the Hungarian
Government and the Board of Public Foundations refrain from
objecting to the University’s action in instituting proceedings
itself before the Mixed Arbitral Tribunal: they expressly
consented to its doing so.

In these circumstances, the Czechoslovak Government was
not justified in relying on the alleged incapacity of the
University.

The Court is therefore of opinion that the Peter Pazmany
University of Budapest fulfilled the conditions necessary to
enable it to submit a claim in virtue of Article 250 of the
Treaty of Trianon.

28
PETER PAZMANY UNIVERSITY 233

With the exception of the Neczpal estate, which the Uni-
versity acquired by purchase in 1914, the property in dispute
before the Mixed Arbitral Tribunal consisted of the estates of
Vagsellye and Znidévaralja, which were given to the University
by Queen Maria Theresa under the Deed of Donation dated
February 13th, 1775 (as confirmed in 1780 and 1804). The
documents submitted to the Court show that the University
was installed in the ownership and possession of these estates
in 1781 and 1804.

From Queen Maria Theresa’s donation and the records of
the installation, it is certain that at that time the University
was the owner of the property in question. It was therefore
incumbent upon the Czechoslovak Government to prove that
the University had subsequently ceased to be the owner of
these estates.

This might have been the case if the University had ceased
to be a juridical person and had become a branch of the public
administration and its patrimony had thus become merged
in that of the State. For the reasons already stated, this
hypothesis must, however, be ruled out.

The Czechoslovak Government appears to have abandoned
the contention which it maintained before the Tribunal, that
the property in issue belonged to the State of Hungary and
for that reason came under Article 191 of the Treaty of
Trianon. What the Czechoslovak Government now asserts
before the Court is that the property belongs to another juri-
dical person called the “University Fund”; the latter, being itself
a juridical person, could not at the same time be the property
of the University.

The Czechoslovak Government has not clearly explained
the relations between this so-called juridical person, the “Univer-
sity Fund”, and the University. At one time it apparently »
regarded the University as the usufructuary of property belong-
ing to the University Fund. Even if this view were correct,
it obviously could not affect the University’s right to claim
the restitution of the property. The rights, property and
interests referred to in Article 250 of the Treaty of Trianon
undoubtedly include usufruct, and any questions which might
_ arise between owner and usufructuary would fall within the
jurisdiction of the municipal courts. This theory, moreover,
of the Czechoslovak Government is in contradiction with
the theory that the University has no personality in law.

29
PETER PAZMANY UNIVERSITY 234

Be this as it may, the Court is of opinion that the Czecho-
slovak Government has not proved the existence of a juridical
person distinct from the University, known as the ‘University
Fund”’.

That Government bases its argument principally upon the
clause ‘titulo dotis ac perpetue fundationis’’ found in all the
deeds of donation. This is alleged to prove that the aim and
effect of these deeds were to create a foundation with a per-
sonality in law; these foundations, which were later either
united in a single foundation or continued to exist side by
side, are said to have formed the University Fund.

It must be noted, however, that all the deeds of donation
specify the donee and that this donee is the University. Since
a foundation with a personality in law can scarcely form the
subject of a donation, and as the University, by the deeds
of installation mentioned above, cannot conceivably have
acquired the ownership of property that belonged to a founda-
tion, the Court is forced to conclude that the clause ‘“#éulo
dotis ac perpetue fundationis’ does not possess the significance
which the Czechoslovak Government attributes to it. The
clause must be construed as denoting a modus attaching to
the donation, a modus the object and effect of which are to
ensure that the property given to the University shall not
be diverted from the purpose intended by the donor.

The Czechoslovak Government further argues that with rare
exceptions the University Fund is entered as the owner of
the property in question in the land registers. In regard to
this point, the Hungarian Government has shown that the
terms “University Fund” and “University” are used in docu-
ments interchangeably, without distinction, whenever the Uni-
versity, gud holder of property rights, is intended. Thus,
‘for instance, in a contract of sale of 1872 and in a lease of
1914, the two terms are used synonymously in the same
deed. An extract from a land register was submitted to the
Court in which the term “Royal Hungarian University Fund’
had been altered, in 1900, in a particular case, to “Royal
Hungarian University”. Again, in the city of Budapest, the
principal building of the Faculty of Medicine stands upon three
sites, one of which is entered in the registers in the name of
the University, while the others . are entered in the name of
the University Fund.

It follows from the foregoing that the term ‘University
Fund” means the University in the sphere of private law.
The fact that the Fund is entered in a land register as the

30
PETER PAZMANY UNIVERSITY 235

owner does not therefore in any way prove the existence of
a. juridical person of that name other than the University
itself. It is true, of course, that only natural ‘or juridical
persons can be entered in the land registers, for they alone
are capable of owning property. But, apart from the fact
that an entry in the registers cannot by itself confer a person-
ality in law, it is by no means impossible that the term
“University Fund” may have been used in the land registers
to denote the University.

For the rest, entries in the land registers appear, under
Hungarian law, only to create a presumption which can be
reversed if evidence to the contrary is forthcoming. And the
University has produced titles investing it with the right of
ownership in respect of the estates in question.

In the same connection, the Czechoslovak Government has
also relied on certain laws of 1874, 1881 and 1897, which are
said. to have made a distinction between the University and
the University Fund. The Court has however been able to
satisfy itself, by a perusal of the statements of reasons accom-
panying these enactments, that the term “University Fund”
was employed to denote the University regarded as a juridical
person, the holder of property rights.

The Czechoslovak Government further invoked a decision
given by the Budapest Court of Appeal in 1927 in an admin-
istrative case concerning the registration of a company known
s “The University Press, Limited”. The recitals of this deci-
sion contain the following passage: “The registration of the
company would create a situation in law whereby the property
of a public foundation would pass into the ownership of a
commercial company founded to do business, and this would
involve the abolition by alienation of the independent person-
ality in law of the Fund and the loss of its status in public
law.”

On the other hand, the Hungarian Government drew the
Court’s attention to another decision given by the Royal
Tribunal of Budapest sitting as a court of appeal on Decem-
ber 30th, 1924, the recitals of which include the following
passage: “Since the Fund derives its origin from donations
intended for the University as a corporation endowed with a
personality in law, it is the University which was, and still
is, entitled to the enjoyment and administration of this Fund.
The University, as a corporation having a personality in law,
is the possessor of the University Fund...”

Both these statements are of an incidental character (obiter
dicta), and the Court is not inclined to attach importance to

37
PETER PAZMANY UNIVERSITY 236

them in the present case. The arguments set forth above
satisfy it that the property in question belongs to the Univer-
sity and therefore fulfils the conditions required by Article 250
of the Treaty of Trianon.

The Czechoslovak Government has also impugned the
judgment of the Tribunal because it reached the conclusion
that the University Fund had no personality in law distinct
from that of the University by reason of the facts in connec-
tion with the application of the Hungarian Board of Public
Foundations for permission to intervene. As the Court has
arrived at the same conclusion for other reasons, there is no
need to dwell on this objection.

The Czechoslovak Government maintains that Article 250
does not protect all the property, rights and interests of
- Hungarian nationals without distinction. Like Article 232,
of which it merely excludes the application in the territories
of the former Austro-Hungarian Monarchy, Article 250—it is
contended—only covers private property, rights and interests.
Property, rights and interests which, according to the local
law—in the present case, the Hungarian law still in force in
the territory in which is situated the property in dispute before
the Tribunal—, are not private property, rights and interests,
and do not, it is argued, come under Article 250.

The Czechoslovak Government adduced this argument in
connection with its other argument that the property in
question belonged to a public foundation known as the “Uni-
versity Fund”. While of opinion that the property belongs
to the University, the Court feels bound to examine this
argument because of the importance attached to it by the
Czechoslovak Government and because, if it were well-founded,
it might apply also to the property of the University.

According to the observations of the Hungarian Agent in
the proceedings before the Court, Hungarian law makes no
distinction between public property and private property;
in so far as it forms the subject of the private law right of
ownership, all property is private property, even if owned by
the State or by territorial] corporations of public law. If this
were really the case, the Czechoslovak Government’s argu-
ment would automatically fall to the ground.

However, the Court has no need to rely upon this inter-
pretation of Hungarian law. It is content to observe that

32
PETER PAZMANY UNIVERSITY 237

the distinction between public and private property, in the
sensé of the Czechoslovak Government’s argument, is neither
récognized nor applied by the Treaty of Trianon.

In this connection, Article 191 first calls for consideration.

The first paragraph of this Article says: “States to which
territory of the former “Austro-Hungarian Monarchy is trans-
ferred and States arising from the dismemberment of that
Monarchy shall acquire all property and possessions situated
within their territories belonging to the former or existing
Hungarian Government.” The Article applies. the principle of
the generally accepted law of State succession, but makes the
transfer of this property subject to certain conditions and
reservations specified in other paragraphs of the same Article.

From the standpoint of the present case, special ‘notice
should be taken of paragraph 2 of that Article; this paragraph
is as follows:

“For the purposes of this Article, the property and posses-
sions of the former or existing Hungarian Government shall
be deemed to include the property of the former Kingdom
of Hungary and the interests of that Kingdom in the joint
property of the Austro-Hungarian Monarchy, as well as all
the property of the Crown and the private property of mem-
bers of the former royal family of Austria-Hungary.”

Thus, the property which is transferred under the Treaty
ipso facto and without need of any special act of acquisition
by the successor State is specified by enumeration in Article LOI,
and the enumeration is based, not on the public or private
nature of the property, but solely on the category of persons
to whom it belonged.

All other Hungarian property, Le. property belonging neither
to the former Kingdom of Hungary, nor to the Crown, nor
to the former royal family of Austria-Hungary, constitutes
property, rights and interests of Hungarian nationals. The
Treaty as such does not affect the ownership of such property,
rights and interests and effects no transfer. ;

According, however, to paragraph (0) of Article 232, ‘the
Allied and Associated. Powers reserve the right to retain and
liquidate all property, rights and interests, which belong at
the date of the coming into force of the present Treaty to
nationals of the, former Kingdom of Hungary, or companies

”

controlled by them, and are within the territories....’’.

The measures thus indicated may not, according to Article 250,
be :applied to property, rights and interests of Hungarian
nationals in the. territories of the former Austro-Hungarian
Monarchy... Article 250 makes. only one exception, namely, in

33
PETER PAZMANY. UNIVERSITY 238

its fourth paragraph, which deals with property coming under
Article 191. All other Hungarian property dealt with in
Section VIII of Part X of the Treaty of Trianon falls within
the category of property, rights and interests protected by
Article 250.

Clearly, therefore, in determining the treatment of Hungarian
property, the Treaty of Trianon takes two factors into account :
the person to whom the property: belongs, and the territory
in which it is situated; its alleged public or private character
is of no account. :

It would, moreover, be incomprehensible if the Treaty had
made a distinction between public property and private prop-
erty without in any way indicating how these two cate-
gories of property were respectively to be dealt with.

In this respect, even the Czechoslovak Government admits
that the property which, in the present case, it seeks to regard
as “public” according to local law (in particular, the property
of public foundations), does not come under Article 191, and
it does not question the Hungarian Government’s statement
that the value of this property was not credited to Hungary
by the Reparations Commission.

Accordingly, if Article 232 is regarded as inapplicable because
it only relates to private property, and if, as regards territories
transferred from Hungary to Czechoslovakia, Article 250, which
relates to the same category of property as Article 232, is
also regarded as inapplicable, there remains no provision
which could apply to so-called public property. Even if we
admit, with the Czechoslovak Government, that Articles 249,
256 and 258 of the Treaty are concerned with property of
this kind, it is clear that these are provisions legislating for
special cases; the Treaty contains no general rule, like Arti-
cles 1gr and 232 (or, so far as concerns territories transferred
from Hungary to Czechoslovakia, like Article 250), to determine
the treatment of this so-called public property.

For these reasons, the Court is of opinion that the right to
submit a claim to the Mixed Arbitral Tribunal under Article 250
is not conditional upon the private character of the property,
rights and interests in dispute. It is sufficient in all cases that
the property, rights and interests should be those of Hungarian
nationals within the meaning of Article 246. This condition
the University’s claim undoubtedly fulfilled.

*

In the submissions which it presented to the Court in the
present suit, the Czechoslovak Government maintained that
the University is not entitled to claim the property in question

34
PETER PAZMANY UNIVERSITY : 239-

and that it (the Czechoslovak Government) is not bound to
restore it to the University.

The conclusions already reached by the Court enable it to
be said that, prima facie, the University was justified in
claiming the restitution of the property in question, under
Article 250 of the Treaty of Trianon. That, however, does
not exhaust the matter.

The judgment of the Mixed Arbitral Tribunal of February 3rd,
1933, also states that the Czechoslovak Government must restore
to the University the immovable property claimed by the
latter, “freed from any measure of transfer, compulsory
administration or sequestration, and in the condition in which
it was before the application of the measures in question”.
This is in accordance with the submissions presented in the
Application of the University of December 24th, 1923, which
seeks the restitution of the immovable property in issue
“freed from any measure of sequestration, retention or liquid-
ation, and from any other measure restricting its right of
free disposition, in the condition in which it was before
it was seized, that is to say, on November 3rd, 1918, the
date of the Armistice’’.

Accordingly, the Court has to ascertain whether the measures
applied by the Czechoslovak authorities to the property in
question fall within the scope of Article 250 of the Treaty of
Trianon and whether, consequently, they should be revoked.

In this connection, the Court has first to determine what
measures are referred to in the second paragraph of Article 250,
the paragraph which contains the relevant provision in this
respect; for the Court is not called upon to say whether
Czechoslovakia, by maintaining the measures it had applied
to the property in dispute, infringed the prohibition contained
in the first paragraph of Article 250, but only whether, under
the second paragraph, she is or is not bound to revoke these
measures.

According to the terms of the second paragraph, the measures
which Czechoslovakia may have to revoke are, in the first place,
“any measure” such as the retention or liquidation referred to
in Article 232 and in the Annex to Section IV of Part X of the
Treaty of Trianon; and, in the second place, “any other measure
of transfer, compulsory administration or sequestration taken
since November 3rd, 1918, until the coming into force of the
present Treaty”. Having regard to paragraph (0) of Article 232,
it will be found that the “liquidation” included in the first
of these two groups of measures means the species of compul-
sory expropriation of the property of nationals of the defeated
States situated in the territory of the victorious States, which
was instituted by the peace treaties of 1019-1920 with a view
to the proceeds being carried to reparations account or with

5 35
PETER PAZMANY UNIVERSITY 240

the object of economic elimination. Having regard, on the
other hand, to paragraph (a) of the same Article and to para-
graph 3 of the Annex following Article 233, it will be seen
that the “retention” included in the first of the two above-
mentioned groups of measures covers “exceptional war meas-
ures” of all kinds, “legislative, administrative, judicial or
others .... which have .... the effect of removing from the
proprietors the power of disposition over their property, though
without affecting the ownership, such as measures of supervis-
ion, of compulsory administration, and of sequestration; or
measures which have had .... as an object the seizure of, the use
of .... for whatsoever motive, under whatsoever form and in
whatsoever place”. As regards the second group of measures
contemplated by paragraph 2 of Article 250, i.e. the measures
the enumeration of which begins with the words “or from
any other measures’, this group no doubt includes measures
which, though in their nature and effects similar to the “‘liquid-
ation” or the “exceptional war measures” which are included in
the first group, have not been taken for a purpose connected
with the war or with a view to liquidation for the purposes
of reparations or economic elimination.

It is shown by the foregoing statement of the facts that the
Court has had little information regarding the measures taken
at the outset in respect of the University’s property in
Slovakia by the Czechoslovak authorities which established them-
selves in the country before and after November 3rd, 1918.
Having regard, however, to the written and oral statements
made before the Court by the two Parties, which statements do
not conflict in this respect, it may be assumed that events
developed more or less as follows:

In November 1918, at the time of the occupation of Slovakia
by the troops which had become Czechoslovak, the new
authorities laid hands on the property of the University in
the same way as on other property which they regarded as
Hungarian. The Hungarian administrators of the University’s
property were probably replaced by Czechoslovak administra-
tors, but it is likely that in other respects the administration
was carried on as in the past, with this difference, however,
that the revenues were no longer paid to the Hungarian
owners. On August xrth, 1919, an Ordinance was issued by
the Czechoslovak Minister with full powers: for the adminis-
tration of Slovakia. Under this Ordinance, which is described
as relating to ‘‘the compulsory administration of certain eccle-
siastical property”, and which refers to Article rz of the Service
Regulations for the Hungarian Board of Public Foundations
issued on September 27th, 1867, by the Hungarian Minister
of Worship, certain ecclesiastical estates are placed under
sequestration, whilst others are placed under supervision.

36
PETER PAZMANY UNIVERSITY 241

Article 11 of the Regulations of 1867 expressly deals with the
provisional disposal of the revenues of ecclesiastical estates
fallen vacant as a result of the death of their holders: such
revenues are to be devoted to the Hungarian ‘Religious
Fund”. The Czechoslovak Ordinance of August 11th, 1919,
entrusts the administration of property under sequestration
or supervision to the ‘Central Commission for property of the
Roman Catholic Church in Slovakia’; the article containing
this provision goes on to say that “this Commission .... is to
exercise supervision over all foundations and is to decide as
to the employment of the net revenues derived from this
property, in accordance with the relevant Regulations”.

When this Commission was set up, the administration of
the University’s property was entrusted to it. This circum-
stance has been explained by the Agent for the Czechoslovak
Government as a due to the idea that the property belonged
not to the University but to the “University Fund”, which
was regarded as a public foundation established, in so far as
concerns the estates in Slovakia, in Czechoslovak territory.
The Court has already explained the reasons why this notion
must be regarded as erroneous.

However that may be, it does not seem to follow from the
terms of the Czechoslovak Ordinance of August 11th, 1910,
or from those of the Hungarian Regulations of September 27th,
1867, that either of these two instruments necessarily applied
to the property of the University in Slovakia. Nevertheless,
according to the statement of the Czechoslovak Government
itself, it seems certain that these instruments were, in actual
fact, so applied. The Court may therefore confine itself to
observing that, according to its title, the Ordinance relates-
to measures of compulsory administration, and that the last
paragraph of the third Article—the clause more particularly
mentioned by the Czechoslovak Government as being the
clause applied to the property in question—relates to the
“supervision” of foundations and the disposal of their revenues.

As already explained, compulsory administration and super-
vision are included amongst the measures the withdrawal of
which is prescribed by Article 250 of the Treaty of Trianon.

The Czechoslovak Government does not dispute this but argues
that the conception of compulsory administration contemplated by
the Treaty is not the same as that envisaged by the Ordinance
of 1019: only the former, it says, involves a measure on the
part of the State amounting to seizure, whilst the latter is
purely in the nature of a measure of protection. It argues in
the second place that the Treaty only requires such measures
to be revoked if, and in so far as, they involve an element of
discrimination, that is to say if, and in so far as, they have

37
PETER PAZMANY UNIVERSITY 242

been taken in respect of property belonging to Hungarian
nationals, by reason of their Hungarian nationality (‘as Hun-
garian and because Hungarian”). In the third place, it states
that it confined itself to setting up a Commission to which
the powers of the Hungarian Board of Public Foundations
were transferred simply because that authority, being a
Hungarian State administration, could not exercise its functions
in Czechoslovak territory. It contends that the State of Czecho-
slovakia has done nothing affecting the legal status of the
property in issue, and that the State has appropriated no part
of the capital value or revenues of this property; the revenues
have been used—it says—either to improve the estates or to
add to them, or for the purpose of loans granted to third
parties.

With regard to the first of these objections, the Court
would simply observe that, though it is true that Article I
of the Hungarian Service Regulations of September 27th,
1867, lays down the principle that it is the duty of the Board
of Foundations “‘to preserve the integrity of the movable and
immovable property of the fund’, it is equally true that this
provision is not cited in the Czechoslovak Ordinance of rg19,
the third Article of which states on the contrary that the
Central Commission is to ‘decide as to the employment of the
revenues”.

In regard to the second objection, the Court observes in
the first place that, in contending that discrimination consti-
tutes one of the essential characteristics of the measures referred
to, the Czechoslovak Government has relied on two main
arguments. The first is based on Sir Austen Chamberlain’s
report to the Council of the League of Nations in 1927, in
connection with the Hungaro-Roumanian dispute concerning
the agrarian reform in Transylvania. The second argument
is that, if any other interpretation were adopted, Hungarian
nationals would be receiving preferential treatment, a situation
which would be unreasonable and contrary to the general
principles of the Treaty.

In regard to this subject, the Court observes, first, that the
measures which were applied to the estates of the University
in Slovakia as early as November 1918, and which were in
a certain sense regularized in August of the following year,
were maintained after the coming into force of the Treaty of
Trianon, and secondly that, according to what was said by
the Hungarian Agent, who was not contradicted by the
Czechoslovak Agent, so far as concerns the facts, these
measures were of a definitely discriminatory character.

In view of the presence of this element of discrimination
in the measures adopted by Czechoslovakia with regard to the

38
PETER PAZMANY UNIVERSITY 243

property in issue, there is no occasion to raise the question
whether discrimination is essential to justify the application
of Article 250 of the Treaty of Trianon. The Court, there-
fore, confines itself to the following observations :

Article 250 does not make “discrimination” a necessary
condition. This is true, even in regard to the measures of
retention and liquidation, which paragraph 2 of the Article
has in view when referring to paragraph 1, and which are
defined in paragraphs (a) and (6) of Article 232, and in para-
graph 3 of the Annex following Article 233, where the expres-
sion “for whatsoever motive” is used; this is confirmed by
what may be described as the consistent practice of the Mixed
Arbitral Tribunals. The same is true, à fortiori, in regard to
the “other measures” referred to in paragraph 2 of Article 250.

Moreover, the Court has on several occasions, and particu-
larly in its Judgment of May 25th, 1926 (Judgment No. 7),
expressed the opinion that a measure prohibited by an inter-
national agreement cannot become lawful under that instru-
ment simply by reason of the fact that the State concerned
also applies the measure to its own nationals.

Finally, with regard to Sir Austen Chamberlain’s report, it
suffices to say that this report, which aimed at settling, on the
basis of Article 11 of the Covenant, a particular dispute, in
which the presence of the element of discrimination was not,
as in this case, admitted to exist, was not unanimously
accepted by the Council, Hungary, which sat on the Council, in
accordance with Article 4 of the Covenant, having refused
her consent.

As regards the third of the above-mentioned objections of
the Czechoslovak Government, it appears from certain extracts
from the land registers filed with the Court by that Government,
that entries have been made conveying some part, at least, of
the estates in dispute before the Mixed Arbitral Tribunal to the
Czechoslovak State, and thereafter to private individuals. Be
this as it may, and even if it were correct that the Czechoslovak
State had taken no action affecting the legal status of this
property, the Court is unable to regard the objection as well-
founded. For it is common ground that the Commission
instituted by the Czechoslovak Ordinance of August 11th,
1919, has not been administering the estates for the benefit
of the Hungarian owner, who has neither received the revenues
nor any account of the administration. It is also common
ground that, according to the Hungarian Service Regulation
of 1867, the administration by the Hungarian Board of Public
Foundations of property entrusted to that body is in the
nature of private management, on behalf of the owner;
the administration of the University’s estates in Slovakia by the
Board could not therefore have possessed the character of an

39
PETER PAZMANY UNIVERSITY 244

exercise of governmental authority of the Hungarian State.
Moreover, it is right to mention that the whole of this
objection is, once again, connected with the argument that
the estates in dispute were the property of the University
Fund, the latter being regarded as a public foundation ; it is
only in the light of this theory, which the Court has rejected,
that the objection can be estimated at its proper value.

In these circumstances, the Court concludes that the meas-
ures applied to the University’s estates as early as 1918-1019
by the Czechoslovak Government, and maintained by the
said Government after the coming into force of the Treaty
of Trianon, were in the nature of compulsory administration or
supervision within the meaning of Article 250 of the Treaty.

‘As a consequence of this conclusion, the Court finds that
the University was justified in claiming the restoration of its
property, freed from all these: measures, that.is to say, in
the condition in which it was before the application of the
said measures.

The Czechoslovak Government has however advanced cer-
tain further objections against its obligation to restore the
property in the above manner; these objections, which it
describes as subsidiary, are based, respectively, on Article 249,
paragraph 6, and Article 256 of the Treaty of Trianon, and
on the Protocol signed at Paris on April 26th, 1930.

The actual nature of these-objections is not very clear from
the documents filed or from the statements made to the Court.
Thus, in the pleadings on behalf of the Czechoslovak Govern-
ment before the Mixed Arbitral Tribunal, they appear rather
as objections to the exercise of the Tribunal’s jurisdiction
under Article 250 of the Treaty; yet the Tribunal’s judgment
refers to them as being arguments on the merits, designed, in
the -Czechoslovak Government’s intention, to justify the
impugned measures. Both these tendencies were also apparent
in the proceedings before the Court. The latter will therefore
deal with the objections in question simultaneously from both
points of view.

Article 249, paragraph 6, is worded as follows:

“Legacies, donations and funds given or established in
the former Kingdom of Hungary for the benefit of nationals
of that Kingdom shall be placed by Hungary, so far as the
funds in question are in her territory, at the disposition of
the Allied or Associated Power of which the persons in ques-
tion are now, or become, under the provisions of the present
Treaty, or of any treaties concluded for the purpose of com-
pleting the present settlement, nationals, in the condition in
which these funds were on July 28th, 1914, taking account
of payments properly made for the purpose of the trust.”

40
PETER PAZMANY UNIVERSITY 245

The argument which the Czechoslovak Government seeks to
deduce from this text is as follows: In relation to Article 250,
as the lex generalis, Article 249, paragraph 6, constitutes a
lex specialis, governing the treatment, in particular, of the
property of foundations; as the estates of the University (Uni-
versity Fund) in Slovakia fall into that category, it is Arti-
cle 249, and not Article 250, which applies to the property ;
as Article 249 provides for the transference of property from
one Government to the other, the estates in question could not
be a proper subject for a claim before the Mixed Arbitral
Tribunal; moreover, the provision in question is unilateral ; it
imposes an obligation solely upon Hungary, and not, for instance,
on Czechoslovakia. It would follow—it is contended—on the
principle of a contrario, that no corresponding obligation rests
on the latter country in regard to Hungary. According to the
statement made by the Czechoslovak Agent in the course
of the oral proceedings, it follows, first, that “the Treaty of
Peace has not imposed any obligation on the States referred
to in Article 250 to hand over property of foundations situated
in their territories’, and secondly, that “the legal status of the
property of the University Fund .... is henceforward governed
by the legal system in force in these territories’ (territories
which have become part of Czechoslovakia). By this last
conclusion the argument is coupled to one of the objections
which have been already rejected by the Court.

However that may be, the Court cannot admit the justice
of this reasoning. It considers, in the first place—as has
already been said—that the immovable property in question
belongs to the University, as its property, and that in con-
sequence it undoubtedly falls under Article 250. But, even
apart from that consideration, which relates rather to the
issue of jurisdiction, the Court is of opinion that the unilateral
character of the clause invoked by Czechoslovakia affords no
basis for an argument a contrario.

It is indeed evident that the provision in question could
not be otherwise than unilateral; for though there may have
been Hungarian legacies, donations, funds or foundations
“destinés à” (intended ‘‘for the benefit’? of) Hungarians who
have become Czechoslovak nationals, there could not possibly
be any Czechoslovak legacies, etc., “destinés a’ (intended “for
the benefit” of) Czechoslovakians who have become Hungarians.
Moreover, it should be pointed out that, according to the
information which the Hungarian Government’s Agent gave to
the Court, that Government was anxious not to deprive its
former nationals, who had become Czechoslovakians, of the
legacies, etc., which had been “‘destinés &” (intended for their
“‘benefit”’). Whatever is deemed to be the character of the
Budapest University, it is clear that it is not ‘destinée à’
{intended ‘‘for the benefit” of) these former nationals.

AI

PETER PAZMANY UNIVERSITY 246

‘

Article 256 of the Treaty of Trianon lays down that ‘‘special
agreements will determine the division of the property of asso-
ciations or public corporations carrying on their functions in
territory which is divided in consequence of the present Treaty’.

The argument which Czechoslovakia seeks to found on this
Article appears to be two-fold. In the first place, Czechoslovakia
maintains that, even if the University possesses personality in
law, it is in any case one of those public corporations, or asso-
ciations, which carry on their functions in a territorial area
divided as a consequence of the Peace Treaties. For, it is
argued, the University’s functions are not confined to the del-
ivery of lectures in its buildings, but extend to the whole
territory of the former Kingdom of Hungary; furthermore, for
more than 150 years, its seat was established in a city which
is now in Czechoslovak territory. Hence, it is said, it is Arti-
cle 256, as a lex specialis, that applies to the University’s
property, and not Article 250, which is the lex generalis ;
consequently, the fate of this property must be determined
by special agreements, and not by the provisions of the last-
named Article.

Again—and this is the second argument—a special convention
determining this question has been concluded, in the form of
the Protocol of Paris of April 26th, 1930.

The Court is equally unable to accept this reasoning. It
considers—quite apart from the question whether the University
can properly be described as a “public” corporation within
the meaning of the Treaty, a point which the Court is not
called on to decide—that the University exercises its functions
at Budapest, where it has its seat, that is to say, in the terri-
tory of the Hungarian State, as delimited after the War.
The fact that its seat was established elsewhere at a remote
period, and the other fact that it is open to foreign students,
and naturally also to students from all parts of the former
Kingdom of Hungary, cannot in any way alter that situation,
nor can it render Article 250 inoperative.

Having thus rejected the argument founded on Article 256,
so far as it relates more particularly to the question of juris-
diction, the Court finds itself also unable to accept the argu-
ment relating to the merits, that is, the argument based on
the Protocol of Paris of April 26th, 1930.

That Protocol, which is signed by Hungarian and Czecho-
slovak plenipotentiaries, contains ner alia the following pro-
visions :

“(z) Each of the two contracting States shall retain the
legacies, donations, scholarships and foundations of every kind
existing in this territory.

42
PETER PAZMANY UNIVERSITY 247

- (2) The same principle shall apply to the division of the
property referred to in Article 256 and in Article 258 of the
Treaty of Trianon. -

(3) The Hungarian Government undertakes to surrender
forthwith the two Palffy foundations, and will take steps to
ensure that the application No. 192 relating thereto which is
before the Hungarien-Czechoslovak Mixed Arbitral Tribunal will
be withdrawn at latest within one month of the coming into force
of the Agreements initialled at The Hague and signed at Paris.

The present arrangement shall in no way affect the case
which has been brought by the University of Budapest before the
Hungarian-Czechoslovak Mixed Arbitral Tribunal under No. 221,
wy prejudice to the legal points of view of either side.

This Protocol shall be regarded as an arrangement under
Article 2 of Agreement 1.”

Paragraphs 1 and 2 lay down, for the application, inter
alia, of Articles 249 and 256 of the Treaty of Trianon, the
principle that each country retains the property situated in
its territory. The first sub-paragraph of paragraph 3 provides
for an actual application of that principle. It is the second
sub-paragraph of the same paragraph which excludes from the
application of the “present arrangement’’ the suit instituted
by the University, in which the Mixed Arbitral Tribunal gave
-judgment on February 3rd, 1933.

The Czechoslovak Government infers from the fact that
this excepting clause constitutes the second sub-paragraph of
a paragraph which is concerned with a special issue—the
question of the Palffy foundations—instead of forming a separ-
ate numbered paragraph, that the clause is not intended to
exclude the suit between the University and the said Govern- .
ment from the application of the general principle of the Pro-
tocol, namely, the principle defined above, but is simply
designed to reserve the question whether paragraph I or
paragraph 2 applies to the said suit, until such time as the
Mixed Arbitral Tribunal shall have decided whether the Uni-
versity’s estates fall under Article 249 or Article 256 of the
Treaty of Trianon.

Apart from the question whether the above theory is not
in conflict with certain other contentions advanced by Czecho-
slovakia, the Court is unable to accept it. It appears difficult
to attach such momentous consequences to the system of
numbering employed—especially as that system may, according
to the information given by the Parties, have been merely
accidental; the Court is moreover unable to disregard the fact
that the last paragraph of the Protocol refers to the whole of
that instrument as “an arrangement’’, the same term as is
employed in the clause in discussion; finally, and above all,

6. | 43
PETER PAZMANY UNIVERSITY 248

the Court considers that this clause would have had no
reasonable meaning if its purpose had not been. precisely to pre-
vent the above-mentioned principle from being applied to
the University’s suit. Moreover, the Mixed Arbitral Tribunal, in
declaring that Article 250 of the Treaty of Trianon was applic-
able, and in excluding Articles 249 and 256, with the applica-
tion of which the Protocol deals, recognized that the latter
does not apply to the University’s suit; and this is the con-
clusion also reached by the Court.

*

Having thus examined and rejected the Czechoslovak Govern-
ment’s various objections to the application of Article 250 of
the Treaty of Trianon to the property of the Peter Pazmany
University situated in Slovakia, the Court finds that the
University was entitled to claim the restitution of the said
property in the condition in which it was when the measures
in question were taken.

This finding coincides with the operative clause of the judg-
ment given by the Mixed Arbitral Tribunal on February 3rd, 1933.

The Czechoslovak Agent has alleged, on that point, that
this would virtually result in granting the University rights
more extensive than those it enjoyed when the Czechoslovak
Government took possession of the property, so that the judg-
ment would be wliva vives. The Court need only point out
in that connection, first, that the Tribunal, in its judgment,
reserved its decision on certain matters, in particular those
concerned with the application of the principle of restitution,
and, secondly, that any dispute which may arise as to the
limits of the rights of ownership or administration of the prop-
erty in question falls within the jurisdiction of the municipal
courts.

*
* *

The Hungarian Government submitted in its Counter-Case
that it might please the Court to “order the appellant State
to pay the costs of the appeal’. The Czechoslovak Govern-
ment, for its part, in its Agent’s pleadings, prayed the Court
that, in case it saw fit to depart from the general rule of
Article 64 of the Statute, it would “order the respondent
State to pay the costs of the appeal’.

The Court is of opinion that there is no occasion, in the
proceedings instituted by the Application of the Czechoslovak
Government of May 3rd, 1933, to depart from the general rule
of Article 64 of the Statute, to the effect that, unless other-
wise decided by the Court, each Party shall bear its own costs.

44
PETER PAZMANY UNIVERSITY 249

FOR THESE REASONS,

The Court,

by twelve votes to one,

(x) rejects the submissions of the Czechoslovak Government ;

(2) decides that, in its judgment No. 221 delivered on
February 3rd, 1933, the Hungaro-Czechoslovak Mixed Arbitral
ribunal has rightly decided (a) that it is competent to take
cognizance of the claim brought by the Royal Hungarian
Peter Pézmäny University of Budapest, against the Czecho-
slovak State, under Article 250 of the Treaty of Trianon;
and (6) that the Czechoslovak Government is bound to restore
to the Royal Hungarian Peter Pazmdny University of Budapest
the immovable property claimed by it, freed from any measure
of transfer, compulsory administration, or sequestration, and in
the condition in which it was before the application of the
measures in question ;

(3) states that there is no need to depart from the general
rule in Article 64 of the Statute that each Party will bear
its own costs. .

Done in French and English, the French text being authori-
tative, at the Peace Palace, The Hague, this fifteenth day
of December, nineteen hundred and thirty-three, in three
copies, one of which shall be placed in the archives of the
Court and the others delivered to the Agents of the Royal
Hungarian Government and of the Government of the Czecho-
slovak Republic, respectively.

(Signed) M. ADATCI,

President.

(Signed) À. HAMMARSKJÜLD,

Registrar.

45
PETER PAZMANY UNIVERSITY 250

Mr. KeLtoce, Judge, who sat as a member of the Court during
part of the extraordinary session devoted to the present case
extending from October 2oth to December 2nd, 1933, and who
took part in the deliberation on the present judgment, was
compelled to leave The Hague before the terms of this
judgment were finally settled. He stated that he concurred
in the conclusions reached by the Court in its judgment.

M. DE BUSTAMANTE, Judge, who sat as a member of the Court
during part of the extraordinary session devoted to the present
case extending from October 2oth to December 7th, 1933, and
who took part in the deliberation on the present judgment
and in the preliminary vote, was compelled to leave The
Hague before judgment was delivered. He stated that he
concurred both in the operative part of the judgment and in
the grounds on which it was based.

M. HerMann-Otavsky, Judge ad hoc, declares that he is
unable to concur in the judgment given by the Court and,
availing himself of the right conferred upon him by Article 57
of the Statute, has Ppended to the judgment the dissenting
opinion which follows.

e

(Initialled) M. A
(Initialled) À. H.

46