Sept. 15th, 1923, File F.c. VIII, Docket III.4
Present: MM. LODER, President, WEISS, Vice-President, Lord FINLAY, MM. NYHOLM, DE BUSTAMANTE, ALTAMIRA, ODA, ANZILOTTI, HUBER, Judges, M WANG, Deputy-Judge.
On July 7th, 1923, the Council of the League of Nations adopted the following Resolution:
The Council of the League of Nations having received notice of the following question:
The Polish Government has decided to treat certain persons, who were formerly German nationals, as not having acquired Polish nationality and as continuing to possess German nationality, which exposes them in Poland to the treatment laid down for persons of non-Polish nationality, and in particular of German nationality:
On the one hand, on the ground that these persons were born in the territory which is now part of Poland, their parents having been habitually resident there at the date of this birth, it is maintained that in virtue of Article 4, paragraph I, of the Treaty of June 28th, 1919, between the Principal Allied and Associated Powers and Poland, they are ipso facto Polish nationals, and 7 consequently enjoy all the rights and guarantees granted by the provisions of the said Treaty to Polish nationals belonging to racial, religious or linguistic minorities:
On the other hand, the Polish Government considers itself entitled not to recognise these persons as Polish nationals, if their parents were not habitually resident in the above-mentioned territory both on the date of birth of the person concerned and on the date of the entry into force of the above-mentioned Treaty, namely January 20th, 1920. It is consequently maintained that these persons cannot legally enjoy the guarantees granted by the Treaty:
Requests the Permanent Court of International Justice to give its Advisory Opinion, if possible during the present session, on the following questions:
(1) Does the question regarding the position of the above-mentioned persons, in so far as they may belong to racial or linguistic minorities, arising out of the application by Poland of Article 4 of the Treaty of June 28th, 1919, between the Principal Allied and Associated Powers arid Poland, fall within the competence of the League of Nations under the terms of the said Treaty?
(2) If so, does Article 4 of the above-mentioned treaty refer solely to the habitual residence of the parents at the date of birth of the persons concerned, or does it also require the parents to have been habitually resident at the moment when the treaty came into force?
The Secretary-General is authorised to submit this request to the Court, together with all documents concerning the question, to inform the Court of the action taken by the Council in the matter, to give all necessary assistance in the examination of the case and, if necessary, to arrange to be represented at the Court.
On the 11th of the same month, the Secretary-General of the League of Nations submitted to the Permanent Court of International Justice a request in the following terms:8
The Secretary-General of the League of Nations, in pursuance of the Council Resolution of July 7th, 1923,
and in virtue of the authorization given by the Council, has the honour to submit to the Permanent Court of International Justice an application requesting the Court, in accordance with Article 14 of the Covenant, to give an advisory opinion to the Council on the questions which have been referred to the Court by the Resolution of July 7th, 1923.
The Secretary-General has also the honour to attach to this communication a note explaining the action taken by the Council in the matter, together with copies of such documents, relative to the points under discussion, as have up to the present been communicated to the Members of the Council and are not yet in the possession of the Court.
The Secretary-General will be prepared to furnish any assistance which the Court may require in the examination of the question, and will, if necessary, arrange to be represented before the Court.
In conformity with Article 73 of the Rules of Court, notice of the request for an advisory opinion was given to the Members of the League of Nations through the Secretary-General of the League and to the States mentioned in the Annex to the Covenant. The Registrar was also instructed to notify the German Government.
The Secretary-General sent, both with the request and subsequently, a number of documents relating to the question. At the same time the Secretary-General referred to certain other documents, which he had sent to the Court with the request for an Advisory Opinion regarding the question of the German settlers in Poland, which question formed the subject of the Advisory Opinion given by the Court on September 20th, 1923 (No. 6).
Furthermore, the Court, at the request of the Polish and German Governments respectively, has heard oral statements made by Count Rostworowski, Professor at the University 9 of Cracow, representative of the Polish Government, and M. Schiffer former Minister of Justice, representative of the German Government.
The Roumanian Government, to whom notice of the request for an Advisory Opinion submitted by the Council was despatched by the Secretary-General of the League of Nations on August 6th, informed the Court only on August 25th that it desired to be allowed to furnish information during the hearings in regard to this Opinion. The Court, using the discretionary powers which it possesses in the case of Advisory Opinions, at once deferred to the desire thus expressed, and fixed September 3rd for the hearing of the Roumanian representative. The period of time thus allowed was considered too short by Roumania, but it was impossible to extend it beyond the date already fixed, having regard to the fact that the completion of the Court's Agenda was imminent, and to the Council's desire that the question should, if possible, be dealt with during the present session.
It appears from the documents1 placed before the Court 10 that, whereas the question regarding the German settlers in Poland was brought to the knowledge of the League of Nations by a telegram from the German League for the Protection of the Rights of Minorities in Poland, of Bromberg, addressed to the Secretary-General on November 8th, 1921, the question relating to the interpretation of Article 4 of the Treaty signed at Versailles on June 28th, 1919, between the Principal Allied and Associated Powers and Poland, was referred to for the first time in the above-mentioned League's petition to the League of Nations, dated November 12th, 1921. This Petition also dealt with the question of the settlers, and the Council of the League subsequently considered both questions together.
The Petition was brought to the knowledge of the Polish representative near the Secretariat and was communicated to the Members of the Council, in conformity with a Council Resolution on the protection of minorities, dated June 27th, 1921. In accordance with the procedure laid down in its Resolution of October 25th, 1920, the Council appointed a Committee consisting of three of its Members to investigate the questions submitted to the League by the German League in Poland. On the basis of information supplied by the Polish representative at Geneva and by the League above-mentioned, the Committee prepared a report which was approved by the Council on May 17th, 1922. In the Resolution approving the report, the Council requested the Polish Government to postpone any administrative or judicial measures likely to affect the normal position of persons of German origin engaged in agricultural work, whose status as Polish subjects was dependent upon the decision taken with regard to the questions of interpretation raised in the Committee's report.
Subsequently additional information was submitted to the Council by the German League in Poland and the Polish Government, and on September 9th, 1922, the Brazilian representative submitted to the Council, then in session at Geneva, a report recommending that the question of the interpretation of Article 4 of the Polish Treaty of Minorities should be submitted to a Committee of Jurists. The Council approved 11 this suggestion and appointed the Committee, which was composed of MM. Botella (Spain), Fromageot (France), Sir Cecil Hurst (Great Britain), and van Hamel (Secretariat of the League of Nations). In a Resolution dated September 30th, the Council decided to request the representative of the Polish Government to bring the report submitted by this Committee to the notice of his Government at the earliest possible moment. The Polish Government informed the President of the Council of the League of Nations that it could not accept the interpretation of Article 4 of the Polish Treaty of Minorities adopted in the report and added that in its opinion the Said Article was not amongst those placed under the guarantee of the League of Nations.
When, on February 3rd, 1923, the Council decided to submit to the Council for an advisory opinion the question regarding the German colonists, it stated at the same time that since the interpretation of Article 4 of the Polish Treaty of Minorities was at that moment the subject of negotiations between German and Polish Delegations at Dresden, it would perhaps be better for practical reasons not to submit that question to the Court for the time being, and to await the result of the negotiations then proceeding, it being understood, however, that the League of Nations reserved all the rights which it possessed under the Treaty of Minorities.
In the absence of information in regard to the progress of negotiations at Dresden, the Brazilian Representative on the Council, on April 21st, instructed the Secretary-General to ask the Polish Government to furnish all information likely to throw light on the matter, in order that the Council might once more consider the question. The Secretary-General having complied with these instructions, the Polish Delegate to the League of Nations informed him, on June 26th, that in the course of the negotiations at Dresden the foundations of an agreement regarding the interpretation of Article 4 had been laid, and that the agreement in question was under consideration by the two Governments. The Polish Government therefore requested the Council to refrain from including the question of the interpretation of Article 4 of the Minorities Treaty upon its Agenda.12
Nevertheless, as the question had been included on the Agenda for the 25th Ses; ion of the Council, and as the German Consul at Geneva informed the Secretary-General, on July 6th, that the German Government did not foresee the possibility of a speedy settlement of the question by means of direct negotiations, the Council decided to submit to the Court for its advisory opinion the two following questions:
(1) Is the League of Nations competent to deal with the question of Article 4 of the Treaty of June 28th, 1919, between the Principial Allied and Associated Powers and Poland?
(2) If the League of Nations is competent, what is the precise interpretation of this Article?
At the request of the Council, the President agreed to draw up the final text of the request to be submitted to the Court. This text is that which is reproduced at the commencement of the present opinion. The new wording of the second question concentrates the Court's attention on the difficulty arising out of the words "born in the said territory of parents habitually resident there" which occur in Article 4.
The first question to be decided is whether the matter dealt with in the request is within the competence of the League of Nations.
In contesting the competence of the League to deal with the question regarding the interpretation of Article 4 of the Polish Treaty of Minorities with respect to certain former German subjects, and regarding the manner in which this Article has been applied by Poland to these persons, Poland contends that the guarantee of the League of Nations established by the Treaty does not extend to the provisions of Articles 3 to 6.
Poland's contention in this respect is as follows. Article 12 of the Minorities Treaty begins:13
"Poland agrees that the stipulations in the foregoing Articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations. They shall not be modified without the assent of a majority of the Council of the League of Nations."
The guarantee of the League of Nations therefore only extends to the preceding Articles of the Treaty in so far as the stipulations of these Articles affect persons belonging to racial, religious or linguistic minorities, and Poland does not admit that the persons contemplated in Article 4 do in fact belong to a minority within the meaning of the Treaty. The first paragraph of Article 4 runs as follows:
"Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality persons of German, Austrian, Hungarian or Russian nationality who were born in the said territory of parents habitually resident there, even if at the date of the coming into force of the present treaty they are not themselves habitually resident there."
According to Poland's contentions, a person must be a Polish national in order to belong to a minority within the meaning of the Treaty. But the persons referred to in the paragraph quoted above - in this case persons of German origin - cannot be considered as Polish nationals, since the question to be decided is whether, under the terms of this Article, they do or do not possess this status. At the most they can only be considered as, candidates for member-ship of a minority; it follows therefore that the competence of the League of Nations as defined in Article 12 of the Treaty does not extend to these persons.
The first question which arises therefore is what must he understood by a minority - in the present case a German minority - within the meaning of the Polish Minorities Treaty. In order to reply to this question it is necessary to 14 bear in mind the conditions under which the Minorities Treaty was concluded arid the relations existing between that Treaty arid the Treaty of Peace which was signed on the same day.
The independence of the new State of Poland was finally recognized by the Treaty of Peace. At the same time Poland assumed certain obligations towards the Principal Allied and Associated Powers who were co-signatories with her of the Treaties of Peace and Minorities. According to Article 93 of the Treaty of Peace:
"Poland accepts and agrees to embody in a Treaty with the Principal Allied and Associated Powers such provisions as may be deemed necessary by the said Powers to protect the interests of inhabitants of Poland who differ from the majority of the population in race, language or religion."
Again, in the Preamble of the Minorities Treaty Poland declares that she desires:
"to conform her institutions to the principles of liberty and justice, and to give a sure guarantee to the inhabitants of the territory over which she has assumed sovereignty."
It is to be observed that these two clauses which serve as a basis for the provisions embodied in the Minorities Treaty do not speak restrictively of Polish nationals, that is to say of persons who in their capacity as Polish nationals constitute minorities within the whole body of nationals of the country; these clauses considerably extend the conceptions of minority and population, since they allude on the one hand to the inhabitants of the territory over which Poland has assumed sovereignty and on the other hand to inhabitants who differ from the majority of the population in race, language or religion. The expression "population" seems thus to include all inhabitants of Polish origin in the territory incorporated in Poland. Again, the term "minority" seems to include inhabitants who differ from the population in race, language or religion, that is to say, amongst others, inhabitants of this territory of non-Polish origin, whether 15 they are Polish nationals or not. This conclusion is confirmed by the terms of Article 2 of the Minorities Treaty, according to which the Polish Government undertakes to assure full and complete protection of life and liberty to all inhabitants without distinction of birth, nationality; language, race or religion, and declares that all inhabitants of Poland shall enjoy certain rights which are therein enumerated.
The terms of Article 12, which fixes the extent of the competence of the League of Nations, are in entire accordance with the wider conception of a minority derived from the Articles above-mentioned, since it speaks of "persons belonging to racial, religious or linguistic minorities", without attaching any importance to the political allegiance of these persons.
Moreover, the Minorities Treaties in general, and the Polish Treaty in particular, have been concluded with new States, or with States which, as a result of the war, have had their territories considerably enlarged, and whose population was not therefore clearly defined from the standpoint of political allegiance. One of the first problems which presented itself in connection with the protection of the minorities was that of preventing these States from refusing their nationality, on racial, religious or linguistic grounds, to certain categories of persons, in spite of the link which effectively attached them to the territory allocated to one or other of these States. It is clearly not a purely fortuitous circumstance that the Treaties for the protection of minorities contain provisions relating to the acquisition of nationality. Again, the fact that in some cases these provisions merely repeat, either in their entirety or in part, principles laid down in the Peace Treaties, would appear to be explained by the intention to extend to these principles the guarantee of the League of Nations, no matter what points of difference or resemblance there may between these treaties.
Poland therefore, at the moment of her final recognition as an independent State and of the delimitation of her frontiers, signed provisions which establish a right to Polish nationality, and these provisions, in so far as they are inserted 16 in the Minorities Treaty, are recognized by Poland as fundamental laws with which no law, regulation or official action may conflict or interfere (Article 1 of the Treaty of Minorities). Though, generally speaking, it is true that a sovereign State has the right to decide what persons shall be regarded as its nationals, it is no less true that this principle is applicable only subject to the Treaty obligations referred to above.
The observance by Poland of the provisions regarding the acquisition of Polish nationality, which she accepted in signing the Treaty of Peace, is of supreme importance to persons of non-Polish origin who are entitled to avail themselves of the provisions in question in order to become Polish nationals.
In view of the importance of this matter, the Principal Allied and Associated Powers desired to create a sure guarantee in favour of these persons; with this object in view they inserted stipulations on the subject in the Minorities Treaty, thus indicating their intention that these persons should benefit by the protection provided for under Article 12. The very fact that Articles 3 to 6 are included in the Minorities Treaty seems thus to show that, in so far as these Articles establish a right on the part of persons of German origin to Polish nationality, this right is placed under the guarantee of the League of Nations, which is specially fitted to undertake the protection of the persons of German origin referred to in the Minorities Treaty, to which Germany was not a signatory.
It seems therefore evident that since the Minorities Treaty in general, and Article 4 in particular, does not exclusively contemplate minorities composed of Polish nationals or of inhabitants of Polish territory, Poland, by consenting, in Article 12 of the Treaty, to the preceding Articles being placed under the guarantee of the League of Nations in so far as they concern persons belonging to racial or linguistic minorities, also consents to the extension of this protection to the application of Articles 3 to 6.
If this were not the case, the value and sphere of application of the Treaty would be greatly diminished. But in the Advisory Opinion given with regard to the questions put 17 concerning the German colonists in Poland, the Court has already expressed the view that an interpretation which would deprive the Minorities Treaty of a great part of its value is inadmissible. In the present case it would be still less admissible, since it would be contrary to the actual terms of the Treaty, which lays down in Article 12 that the clauses preceding this Article, including therefore those contained in Article 4, are placed under the guarantee of the League of Nations.
The Council of the League of Nations, in the second place, has requested the Court to give its opinion regarding the construction to be placed upon the above-mentioned stipulation of Article 4, paragraph 1, of the Minorities Treaty of June 28th, 1919, between the Principal Allied and Associated Powers and Poland, and in particular upon the words "habitually resident there".
The Polish Government maintains that when the Treaty places it under an obligation to admit and declare to be Polish nationals persons of German, Austrian, Hungarian or Russian nationality, born in the territory which has now become Polish, of parents habitually resident there, the meaning is that, of the individuals of German origin born in this territory, only those can claim Polish nationality whose parents were habitually resident there both on the day of the coming into force of the Treaty (January 10th, 1920) and on the day of the birth of the individual.
Such an assertion is in contradiction with the terms of the provision which it claims to interpret and is not supported by the precedents supplied by international practice.
When saying that persons born in the territories ceded to Poland of parents habitually resident there are admitted to Polish nationality, the Treaty clearly takes the date of birth of those persons as a basis and establishes a close relationship, an intentional synchronisation between their birth and the habitual residence of their parents. On the other hand, to 18 require furthermore the continuance or the reestablishment of this habitual residence at the time of the coming into force of the Treaty would amount to an addition to the text and would go beyond its terms. Persons whose parents were then, but then only, habitually resident in the new Poland would not have been born of persons habitually resident there, and there was never any intention of making Article 4 applicable to them. Why should the fact that the parents had been habitually resident at a previous period change the natural meaning of the words? Since the choice lay between the two systems which in various forms and combinations have always been adopted when it has been necessary to determine the effect of a territorial adjustment upon the nationality of the inhabitants of the territories annexed or ceded, the Treaty adopted both the principle of habitual residence and the principle of origin; it has combined these two systems.
In Article 3, which supplements Article 91 of the Peace Treaty of Versailles, it declares in the first place to be Polish nationals, subject to a right of individual option, all German nationals habitually resident in the territories incorporated in Poland.
In the second place, under Article 4, it grants the same nationality to persons born in the above-mentioned territories, that is to say, originating from these territories, provided they are born of parents habitually resident there, and that they do not renounce, within a period of two years, the nationality which they have acquired. In laying down the condition with regard to the residence of the parents the authors of the Treaty desired to reduce as far as possible the element of chance. A birth occurring in a family established in the territory, on the regular and permanent footing presupposed by habitual residence, would not be an accidental circumstance taking place during a temporary sojourn or visit. The establishment of his parents in the territory on this basis creates between the child and his place of birth a moral link which justifies the grant to him of the nationality of this country; it strengthens and supplements the material bond already created by the fact of his birth.19
To require in addition that the parents should have renewed or preserved their habitual residence in the ceded territories at the time when the Treaty of Minorities came into force would be to lay down a useless condition not to be found in any Treaty of annexation hitherto concluded. The habitual residence of parents at the time of the coming into force of the Treaty does not in any way concern or affect the individuals whose nationality has to be determined. Many of these individuals have doubtless reached the age of manhood; some perhaps have already reached old age; at all events, most of them have attained an independent existence and a home of their own. What in these circumstances would be the use of ascertaining whether their parents, whose house they have left and whose destinies they no longer share, were or were not habitually resident in the territories incorporated in Poland on a day following this incorporation? The inquiry thus prescribed would be entirely arbitrary; and there could be no reason for it unless the habitual residence of the parents in the territories in question implied or was calculated to create a presumption that the children themselves were habitually resident there and that in consequence of this residence there was a closer, more enduring and more powerful link with Poland, which had become their fatherland. But the first paragraph of Article 4 itself is careful explicitly to dispel a presumption of this kind, when it declares that it is not necessary for the persons with whom it deals to be themselves habitually resident in the territories incorporated in Poland at the date of the coming into force of the Treaty. The solution thus adopted by the Treaty appears further to be justified, having regard to the great number of persons who were forced by the war to abandon their homes in the present Polish territories.
Furthermore, what is the position of those whose parents died before January 10th, 1920, or transferred their residence abroad in the interval between that date and the date of birth? Would such death or change of residence, for which the children are in no way responsible, prevent them from availing themselves of the provisions of Article 4, should they think fit to do so? According to the theory that the habitual residence of 20 the parents in Poland on the day of the coming into force of the Treaty is a necessary and hard and fast condition, this question can only be answered in the affirmative. This is sufficient to condemn such a contention.
Finally, is it necessary to point out that the adoption of the Polish standpoint would by no means render it impossible for one and the same person to possess more then one nationality, a consequence which the exponents of that standpoint have indicated, pointing out the danger involved? It would undoubtedly have the result of diminishing this danger, by reducing the number of persons who become Polish under Article 4. But the possibility of cases of double nationality would by no means be eliminated. Only an international agreement between the interested Powers could produce this desirable result.
The Court's task is clearly defined. Having before it a clause which leaves little to be desired in the nature of clearness, it is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it. The Minorities Treaty (Article 4, paragraph 1) admits and declares to be Polish nationals, ipso facto, persons who were born in the territory of the new State "of parents habitually resident there".
These words refer to residence of the parents at the time of the birth of the child and at this time only. It is necessary, but on the other hand sufficient, that on the date of birth the parents should have been habitually resident, that is to say should have been established in a permanent manner, with the intention of remaining, in the territory which subsequently became incorporated in Poland. To impose an additional condition for the acquisition of Polish nationality, a condition not provided for in the Treaty of June 28th, 1919, would be equivalent, not to interpreting the Treaty, but to reconstructing it.21
FOR THESE REASONS THE COURT IS OF THE OPINION
That the position of the persons contemplated in the Resolution of the Council of the League of Nations of July 7th, 1923, arising out of the application by Poland of Article 4 of the Treaty of June 28th, 1919, between the Principal Allied and Associated Powers and Poland does fall within the competence of the League of Nations under the terms of the said Treaty;
That Article 4 of the above-mentioned Treaty does refer only to the habitual residence of the parents at the date of birth of the persons concerned.
Done in English and in French, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of September, nineteen hundred and twenty-three, in two copies, one of which is to be deposited in the archives of the Court and the other to be forwarded to the Council of the League of Nations.
(Signed) A. HAMMARSKJÖLD,
Mr. Moore took part in the deliberations of the Court concerning the present Opinion, but had to leave the Hague before its terms were finally settled. He declared that he concurred in the conclusions of this Opinion.
Lord Finlay, while agreeing in the conclusions arrived at in regard to both questions before the Court, desired to add the following observations in regard to the question of the competence of the League of Nations, in the present matter.
1LIST OF DOCUMENTS TRANSMITTED TO THE COURT BY THE SECRETARY-GENERAL OF THE LEAGUE OF NATIONS OR TO WHICH REFERENCE IS MADE BY HIM. - 1. Account of the action taken by the Council of the League of Nations in the matter dated July 11th, 1923. - 2. Note by the Secretary-General of the League of Nations to the Members of the Council, dated April 25th, 1923. Appendix: Letter from the Brazilian representative to the Secretary-General of the League of Nations, dated April 21st, 1923. - 3. Report presented by the Brazilian representative to the Council on July 4th, 1923. - 4. Note by the Secretary-General of the League of Nations to the Members of the Council dated June 27th, 1923. Appendix: Letter from the Polish Delegate to the League of Nations to the Secretary-General of the League, dated June 26th, 1923. - 5. Minutes of the 5th meeting of the 25th session of the Council of the League of Nations. - 6. Minutes of the 12th meeting of the 25th session of the council of the League of Nations. - 7. Report by the representatives of Belgium, Italy and Japan, approved by the Council on May 17th, 1922. - 8. Petition of the "Deutschtumsbund" of November 12th, 1921. - 9. Memorandum of the Polish Delegation to the' League of Nations of January 26th, 1923. - 10. Information regarding the questions of fact and of law mentioned in paragraphs 1 and 2 of the Resolution of the Council of the League of Nations of May 17th, 1922, presented to the Council on July 5th, 1922 by the Polish Delegate to the League of Nations. - 11 . Memorandum emanating from the "Deutschtumsbund", dated August 1st, 1922. - 12. Report by the Brazilian representative and Resolution adopted by the Council of the League of Nations on September 9th, 1922. - 13. Report by the Brazilian representative and Resolution adopted by the Council of the League of Nations on September 30th, 1922. - 14. Note by the Minister for Foreign Affairs of Poland to the President of the Council of the League of Nations, dated December 7th, 1922. - 15. Report by the Brazilian representative and Resolution adopted by the Council of the League of Nations on February 3rd, 1923.