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[p5] THE COURT,
composed as above,
having heard the observations and conclusions of the Parties,
delivers the following judgment:
[1] The German Government, by an Application filed with the Registry of the
Court on October 18th, 1927, in conformity with Article 60 of the Statute
and Article 66 of the Rules of Court, has submitted to the Permanent Court
of International Justice a request for an interpretation of Judgments Nos. 7
and 8 given by the Court on May 25th, 1926, and July 26th, 1927,
respectively, in suits between the German and Polish Governments, a
divergence of opinion having, according to the Application, arisen between
the two Governments in regard to the meaning and scope of these two
judgments.
[2] It is submitted in the Application:
"that the contention
(1) that in Judgment No. 7 the Court reserved to thePolish Government the
right to annul by process of law, even after the rendering of that judgment,
the Agreement of December 24th, 1919, and the entry, based on that
agreement, of the name of the Oberschlesische as owner in the land
registers;
(2) that the action brought by the Polish Government against the
Oberschlesische Stickstoffwerke A.-G. before the Civil Tribunal of Kattowitz,
with a view to effecting this annulment, is of international importance in
connection with the suit concerning the Chorz�w factory (claim for
indemnity) now pending before the Court,
is not in accordance with the true construction of Judgments Nos. 7 and 8."
[3] Notice of the German Government's Application was given, on the date of
filing, in conformity with the terms of Article 66, paragraph 2, of the
Rules, to the Polish Government, which was at the same time informed that it
might, if it desired to do so, submit its observations upon the request for
an interpretation within a time-limit subsequently fixed by the Court to
expire on November 7th, 1927. When notifying [p6] the Parties of the
decision in regard to this time-limit, the. Court duly drew their attention
to the fact that it corresponded, as regards the proceedings for an
interpretation, to the time-limit for the submission of the Counter-Case
provided for, in the case of ordinary proceedings, by Article 38, paragraph
1, of the Rules of Court.
[4] On November 7th, 1927, the Polish Government filed with the Registry
"Observations" upon the request for an interpretation of Judgments Nos. 7
and 8 made by the German Government. In these observations it was submitted,
"that effect should not be given to the Request of the German Government
dated October 17th, 1927".
[5] On receipt of this submission and of the observations leading up to it,
the Court, on November 9th, adopted the following Resolution which was in
due course communicated to the Parties in the case:
"The Court, having regard to Article 60 of the Statute and Articles 38 and
66 of the Rules of Court, decides:
(1) to invite the German Government to submit, shouldit so desire, on or
before November 21st, a written statement containing, together with further
explanations regarding the submissions of its Application of October 17th,
1927, its observations and conclusions in regard to the observations filed
by the Polish Government;
(2) to invite the Polish Government to submit, should it so desire, within
the same limit of time, further explanations regarding the submissions of
the German Application of October 17th, 1927."
[6] Within the time laid down, the German Government, in accordance with the
Court's decision, filed a "Statement" in which it was submitted
"(1) that the proceedings in regard to the preliminary objections raised by
the Polish Government should be joined to the proceedings on the merits;
(2) that effect should be given to the request made by the German Government
with a view to obtaining an interpretation of Judgments Nos. 7 and 8 in
conformity with Article 60 of the Statute;
(3) that judgment should be given in accordance with the submissions of the
German Application." [p7]
[7] The Polish Government, for its part, announced that it "did not intend
to file further explanations in regard to the request for an interpretation
of Judgments Nos. 7 and 8".
[8] In these circumstances, the Court, in accordance with its Resolution of
November 9th, 1927, held a public sitting on November 28th, 1927, at which
it heard the oral statements of MM. Kaufmann and Sobolewski, the Agents of
the Governments concerned in the case. At the conclusion of these
statements, the Court decided to close the hearing, after having given the
Agents an opportunity of replying; whereupon M. Kaufmann replied briefly,
and M.Sobolewski, stating that in his opinion the previous discussions had
completely exhausted the question, waived his right to reply.
***
THE FACTS.
[9] In the terms of Judgment No. 7 given by the Court on May 25th, 1926, in
the case between the German and Polish Governments, in regard to "certain
German interests in Polish Upper Silesia" - which interests, according to
the Judgment, related, amongst other things, to the "deletion from the land
registers of the name of the Oberschlesische Stickstoffwerke A.- G. as owner
of certain landed property at Chorz�w, and the entry, in its place, of the
Polish Treasury" �it was declared "that the attitude of the Polish
Government in regard to the Oberschlesische Stickstoffwerke .... was not in
conformity with.... the Geneva Convention" concluded on May 15th, 1922,
between Germany and Poland.
[10] On the basis of this decision of the Court, the two Governments entered
upon negotiations with a view to a settlement by friendly arrangement in
regard to the claims of the above-mentioned Company amongst others, by means
of the payment of pecuniary compensation.
[11] These negotiations failed, and the German Government, having informed
the Polish Government that the points of view of the two Governments seemed
so different that it appeared impossible to avoid recourse to an
international [p8] tribunal, filed with the Court on February 8th, 1927, an
Application submitting, amongst other things, "that the Polish Government is
under an obligation to make good the injury sustained" by the
Oberschlesische in consequence of the attitude of that Government in respect
of the Company mentioned. The Polish Government having disputed the
jurisdiction of the Court to entertain the suit thus brought, the Court, on
July 26th, 1927, delivered judgment (No. 8) upon this objection, deciding to
reserve the suit for judgment on the merits, and to instruct the President
to fix the times for the deposit of the documents of the written
proceedings; these times were subsequently fixed in such a way as to enable
the suit on the merits to be ready for hearing on March 1st, 1928.
[12] According to the Application deposited by the German Government with
the Registry on October 18th, 1927, the Polish Government had filed with the
District Court of Katowice, within the jurisdiction of which are situated
the landed properties in question, known as "the factory of Chorz�w", a
claim against the Oberschlesische, which claim was served upon that Company
on September 16th, 1927. In this claim it is - according to the German
Government's Application - submitted:
"(1) that it should be declared that the defendant Company has not become
the owner of the landed property at Chorz�w (vol. XXIII, fol. 725, etc.);
(2) that it should be declared that the entry of the change of ownership in
favour of the defendant Company, made on January 29th, 1920, was null and
void, and that the landed properties mentioned under No. (1) of these
submissions remained the property of the German Reich, notwithstanding the
Auflassung and entry in the register on January 29th, 1920, of the defendant
Company as owner;
(3) that it should be declared that, independently of the laws of July 14th,
1920 (Legal Gazette of the Polish Republic -pos. 400), and of June 16th,
1922 (Gazette -pos. 388), the ownership of the landed properties mentioned
under No. (1) falls to the Polish Treasury."
[13] The statement of the grounds on which these submissions are based is
said to contain the
following passage amongst others: [p9]
"The Judgment [i.e. No. 7 of the Court] has decided the dispute from the
standpoint of the rules of international law; and the Court observes in its
reasoning that it does not pass any opinion on the question whether the
transfer of ownership and entry in the land registers were valid at
municipal law. The Polish argument based on the objection that the
transaction of December 24th, 1919, was not valid at municipal law and that
consequently the entry of January 29th, 1920, was also invalid, is not
discussed by the Court, which simply relies on the mere fact of the
existence of the entry. At the same time, however, the Court says that if
Poland wishes to dispute the validity of this entry, it can, in any case,
only be annulled in pursuance of a decision given by the competent tribunal.
Relying on this judgment, the German Reich, on February 8th, 1927, filed
with the Permanent Court of International Justice at The Hague a new
application respecting the indemnity due in consequence of the violation of
the rights of the defendant Company and of those of the Bayerische
Stickstoffwerke, which violation consisted in the taking over of the factory
by the Polish State.
In these circumstances, the Treasury avails itself of the possibility,
reserved to it by the judgment of the Hague Court, of disputing before the
competent tribunal both the validity of the change of ownership and the
entry in the land register."
[14] The correctness of these quotations has not been disputed by the Polish
Government.
[15] On the other hand, the complete text of the claim served upon the
Oberschlesische on September 16th, 1927, has not been laid before the Court
in the present proceedings. Similarly, the text of the decision which,
according to information given during the oral proceedings, has been
rendered by default by the District Court of Katowice upon this claim, and
which is said to have granted to the Polish Government the relief sought,
has not been placed before the Court.
***
THE LAW.
[16] The request for an interpretation submitted by the German Government,
the conclusions of which are reproduced above, [p10] was made under Article
60 of the Statute of the Court, which runs as follows:
"The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any Party"
[17] The Polish Government having refused to admit the existence in this
case of the conditions required by the article in question in order that a
request for interpretation may be proceeded with, it is necessary in the
first place to consider whether this contention is well-founded.
[18] From the article it appears that these conditions are the following:
(1) there must be a dispute as to the meaning and scope of a judgment of the
Court;
(2) the request should have for its object an interpretation of the
judgment.
[19] As regards the latter condition, the Court is of the opinion that the
expression "to construe" must be understood as meaning to give a precise
definition of the meaning and scope which the Court intended to give to the
judgment in question, and the Polish Government does not appear to claim
that this is not its meaning. But it denies the existence of a dispute
between the two Governments as to the meaning and scope of the judgments
referred to in the German Request, and its submission is that there is no
ground for proceeding with the Request.
*
[20] Before examining the question which has thus been raised, the Court
thinks it advisable to define the meaning which should be given to the terms
"dispute" and "meaning or scope of the judgment", as employed in Article 60
of the Statute.
[21] In so far as concerns the word "dispute", the Court observes that,
according to the tenor of Article 60 of the Statute, the manifestation of
the existence of the dispute in a specific manner, as for instance by
diplomatic negotiations, is not required. It would no doubt be desirable
that a State should not proceed to take as serious a step as summoning [p11]
another State to appear before the Court without having previously, within
reasonable limits, endeavoured to make it quite clear that a difference of
views is in question which has not been capable of being otherwise overcome.
But in view of the wording of the article, the Court considers that it
cannot require that the dispute should have manifested itself in a formal
way; according to the Court's view, it should be sufficient if the two
Governments have in fact shown themselves as holding opposite views in
'regard to the meaning or scope of a judgment of the Court. The Court in
this respect recalls the fact that in its Judgment No. 6 (relating to the
objection to the jurisdiction raised by Poland in regard to the application
made by the German Government under Article 23 of the Geneva Convention
concerning Upper Silesia), it expressed the opinion that, the article in
question not requiring preliminary diplomatic negotiations as a condition
precedent, recourse could be had to the Court as soon as one of the Parties
considered that there was a difference of opinion arising out of the
interpretation and application of Articles 6 to 22 of the Convention.
[22] In order to realize the meaning of the expression "meaning or scope of
the judgment" in Article 60 of the Statute, this expression should be
compared with the terms of the preceding article of the Statute, which
states that a decision of the Court has no binding force except between the
Parties and in respect of the particular case decided.
[23] The natural inference to be drawn is that the second sentence of
Article 60 was inserted in order, if necessary, to enable the Court to make
quite clear the points which had been settled with binding force in a
judgment, and, on the other hand, that a request which has not that object
does not come within the terms of this provision. In order that a difference
of opinion should become the subject of a request for an interpretation
under Article 60 of the Statute, there must therefore exist a difference of
opinion between the Parties as to those points in the judgment in question
which have been decided with binding force. That does not imply that it must
be beyond dispute that the point the meaning of which is questioned is
related to a part of the judgment having binding force. A difference of
opinion as to whether [p12] a particular point has or has not been decided
with binding force also constitutes a case which comes within the terms of
the provision in question, and the Court cannot avoid the duty incumbent
upon it of interpreting the judgment in so far as necessary, in order to
adjudicate upon such a difference of opinion.
[24] It thus becomes necessary to ascertain whether such a difference of
opinion has in fact become manifest in the present case between the two
Governments, as regards the meaning or scope of Judgments Nos. 7 and 8. The
Court will deal with this question separately in relation to each of the
judgments in question and each of the two contentions which the conclusions
of the German Government impute to the Polish Government.
[25] In this respect, the facts which preceded the submission of the
Application for an interpretation by the German Government should be
recalled.
[26] In the course of the negotiations entered upon on the basis of Judgment
No. 7, the Polish Government, by a letter of September 9th, 1926, addressed
to the German Government, had already expressed the opinion that - in so far
as the compensation of the Oberschlesische for the damages which they
claimed to have sustained was concerned - the question whether, at municipal
law, the entry in the land register of the Company in question as owners of
the factory of Chorz�w was valid, remained open, independently of the
judgment of the Court. The German Government replied, on October 2nd,
pointing out that the Court had expressly decided that there was no ground
justifying the contention that the transfer of the factory of Chorz�w to the
Oberschlesische did not constitute an alienation valid at law, and that,
consequently, at the time when the transfer of sovereignty to Poland took
place, the ownership of the factory unquestionably belonged to that Company
and not to the German Reich. "The whole matter", the German Government
stated, "has been finally settled and decided by the judgment of the
Permanent Court at The Hague." The negotiations having failed, and the
question of indemnities having been brought before the Court by the German
Government, Counsel for the Polish Government, in the course of his
pleadings on June 22nd, 1927, in relation [p13] to the jurisdiction of the
Court to adjudicate upon this question, again took up the point of view put
forward by the Polish Government in its letter of September 9th, 1926; and
he then expressly stated that the principle of the right of the
Oberschlesische to compensation was still in dispute, on the very basis of
the said Judgment (Judgment No. 7), which was said to have reserved to
Poland "the right to dispute the validity of this entry". From that he
inferred that the question relating to the recognition of the principle of
the compensation claimed did not as yet constitute an issue as far as
concerned the Oberschlesische, pending the decision by the competent
tribunals, that is to say by the Polish tribunals - before which the Polish
Government was on the point of bringing the matter -, of the question of the
validity of the registration of its title as owner, a question said to have
been reserved by the Court.
[27] The German Agent replied in his pleadings on June 24th : he disputed
the contention that the Court had not so far given a definite ruling and
that it had made a reservation as to the lawful character under municipal
law of the transactions which took place in 1919; he maintained that, in his
opinion, having regard to the grounds and the operative part of the
Judgment, there could be no doubt that the phrase invoked by Counsel for the
Polish Government could not have the meaning which it was given by that
Government, and that consequently that phrase could not be quoted in
argument against the claims of the German Government. It should be observed
that the Agent for the Polish Government, who was present at these pleadings
before the Court, said nothing calculated to impugn or modify the said
remarks of Counsel for that Government. On the contrary, he alluded to them
in his own statement before the Court. There is thus no room for doubt that
at the time those were the views of the Polish Government.
[28] Shortly after the question of jurisdiction had been decided by the
Court (Judgment No. 8), the Polish Government brought against the
Oberschlesische the application announced by its representative during the
hearings in June; and the grounds upon which this application is based,
which are given above, appear to confirm the view that it was indeed brought
[p14] for the purpose indicated at the time of the hearing in question.
[29] From a consideration of these facts, it follows that - whereas the
German Government contends that Judgment No. 7 of the Court finally decided,
with binding effect as concerns the claim for compensation put forward on
behalf of the Oberschlesische, the question relating to the right of
ownership possessed by that Company over the factory at Chorz�w, also under
municipal law -the Polish Government supported the opposite view and, at the
same time, relied on a certain passage in the judgment in question (p. 42)
which, according to its opinion, showed the soundness of this view, and
which might in one sense be described as a reservation. There is therefore,
in so far as the first of the submissions of the German Government is
concerned, a true dispute over a point which, in accordance with the
explanations set out above, relates to the meaning and scope of Judgment No.
7.
[30] The Polish Government contends that the passage in question was not
invoked by it as conferring a right of bringing before the Tribunal of
Katowice the Application actually submitted to that Tribunal, but only as an
affirmation by the Court of a right which that Government already possessed,
apart from any reservation. The Polish Government also contends that the
German request for an interpretation does not relate to the operative part
of the judgment (which, according to the former Government, can alone be the
subject of a request for interpretation), and asserts that it does not claim
that the operative part contains a reservation of the kind referred to in
submission No.1 of the German Government. The Court, however, is unable to
take this view. For it is clear in any case that, although it is not
contested that the terms of the operative part of the judgment do not
contain the reservation in question, the fact that the grounds for the
judgment contain a passage which one of the Parties construes as a
reservation (the effect of which would be to restrict the binding force of
Judgment No.7) or as affirming a right inconsistent with the situation at
law which the other Party considers as established with binding force,
allows of the Court's being validly requested to give an interpretation
fixing the true meaning and scope of the judgment in question. [p15]
[31] On the other hand, as regards Judgment No. 8, the Court considers that
the meaning and scope of that Judgment are not directly affected by the
first of the German submissions. For that Judgment only decides as to the
jurisdiction of the Court to entertain the case submitted by the German
Application of February 8th, 1927. It may, however, be stated that certain
passages of that Judgment may in this connection be taken into account as
showing the meaning and scope which the Court, when it pronounced Judgment
No. 8, attributed to Judgment No. 7.
[32] The second of the submissions of the German Government appears to raise
the question of the effect which the application made to the Katowice
Tribunal might have on the case pending before the Court with regard to the
indemnity claimed by Germany on the basis of Judgment No. 7. According to
the reasoning put forward, it is nevertheless clear that this submission
relates to the application to a particular case of a point which the German
Government considers as having been settled with binding effect by the
judgments already rendered, but which, according to the Polish Government,
leaves open the question as to the validity under municipal law of the
transfer of the ownership to the Oberschlesische and of its entry in the
land register. This second submission thus also refers, implicitly, to a
disputed question relating to the meaning and scope of Judgment No. 7. On
the other hand, as regards Judgment No. 8, the Court confines itself to a
reference to what it has stated on this subject in relation to the first of
the German submissions.
***
[33] Having thus shown that the submissions of the German Government both
comprise requests for the interpretation of the Court's Judgment No. 7, the
Court must now proceed to consider what may be regarded as the merits of the
suit.
[34] In so doing, the Court does not consider itself as bound simply to
reply "yes" or "no" to the propositions formulated in the submissions of the
German Application. It adopts this attitude because, for the purpose of the
interpretation of a judgment, it cannot be bound by formulas chosen by the
[p16] Parties concerned, but must be able to take an unhampered decision.
This view is consistent with the present terms of Article 66 of the Rules of
Court. In fact, according to this article - which was intended by the Court
to furnish information indispensable in regard to proceedings for
interpretation -, the application submitting the request for an
interpretation shall contain:
"(a) a specification of the judgment the interpretation of which is
requested;
"(b) an indication of the precise point or points in dispute."
[35] Whereas Article 35 of the Rules, which deals with an application
instituting ordinary proceedings, requires "an indication of the claim",
Article 66 provides for "an indication of the .... points in dispute". And
whereas, in the case of ordinary procedure, Article 40 of the Rules provides
for the compulsory submission of Cases containing, as an essential part, "a
statement of conclusions", Article 66 only mentions optional "observations"
and "further explanations" to be furnished upon the invitation of the Court.
[36] The Court therefore considers that it should interpret the
"submissions" of the German Application of October 18th, 1927, as simply
constituting an indication, within the meaning of Article 66 of the Rules,
of the points the meaning and scope of which are in dispute between the
Parties. Construed in any other way, the Application in question would not
satisfy the express conditions laid down by the above-mentioned article; and
the Court, as it has already had occa�sion to observe in previous judgments,
may within reasonable limits disregard the defects of form of documents
placed before it.
[37] Adopting the standpoint indicated above, it is to be observed that, on
analysis, the two submissions formulated in the German Application are seen
to refer to the same disputed point regarded from two different aspects.
This point, which has been sufficiently defined above, relates to the
passage appearing on page 42 of Judgment No. 7, which passage the Polish
Government has cited in the claim brought by it before the Tribunal of
Katowice ; this passage is
as follows: [p17]
"If Poland wishes to dispute the validity of this entry, it can, in any
case, only be annulled in pursuance of a decision given by the competent
tribunal."
[38] In reality, therefore, what the German Government seeks is an
interpretation of this passage -considered in relation to the Judgment as a
whole -from two aspects, namely that of its meaning and that of its scope.
[39] Proceeding first of all to consider the first of these aspects, the
Court observes that, considered by themselves, the terms of the passage
above quoted may give the impression that
the Court meant to reserve to Poland the right to obtain from the Polish
Courts a decision which
would apply to the case settled by Judgment No. 7, to the effect that the
Oberschlesische was not, from the point of view of municipal law, validly
entered as owner of the Chorz�w factory.
[40] The argument, in the course of which the lines quoted above occur, is
as follows (p. 42):
"With regard to the argument of the Respondent to the effect that the
contract of December 24th, 1919, and the transfer of ownership on the
following January 28th-29,th, by means of Auflassung and entry in the land
register, are fictitious or fraudulent, it should in the first place be
observed that the Court cannot consider this argument, in so far as it may
be assumed that the intention of the Respondent is to support it, by
considerations of German municipal law, as an independent one ; for the
Polish law, the application of which in regard to the Chorz�w factory has
led to the present dispute between the two Powers, is based neither directly
nor indirectly on the validity or invalidity, from the standpoint of German
municipal law, of the transfer of the properties covered by it ; it is based
exclusively on the date of the transfer in relation to November nth, 1918.
In the next place, it must be observed that the Court, in the exercise of
the jurisdiction granted by Article 23 of the Geneva Convention, will not
examine, save as an incidental or preliminary point, the possible existence
of rights under German municipal law.
The Court has already observed that from the point of view of international
law, the transaction under consideration must, in its opinion, be regarded
as effective and as entered into in good faith. The Court has found in the
arguments advanced by Poland in support of the above-mentioned contention no
reasoning calculated to[p18] modify, from the standpoint of municipal law,
the conclusion at which it has thus arrived on the basis of international
law. In the present case, in fact, the Court holds that the
Oberschlesische's right of ownership of the Chorz�w factory must be regarded
as established, its name having been duly entered as owner in the land
register. If Poland wishes to dispute the validity of this entry, it can, in
any case, only be annulled in pursuance of a decision given by the competent
tribunal; this follows from the principle of respect for vested rights, a
principle which, as the Court has already had occasion to observe, forms
part of generally accepted international law, which, as regards this point,
amongst others, constitutes the basis of the Geneva Convention.
This is true, though, as is pointed out by Poland, the contracts of December
24th, 1919, had been concluded at a time when, not having been entered in
the commercial register, the Oberschlesische possessed as yet no legal
personality. The Court, in fact, notes that the contracts in question were
concluded after the creation of the Oberschlesische and by its regularly
appointed Directors; it further notes that the transfer of the Chorz�w
factory was effected by means of the Auflassung, a transaction of the nature
of a contract, and of the entry in the land register, which formality took
place only after the entry of the Oberschlesische in the commercial
register. Moreover, by acts extending over a period of more than two years,
all the Parties concerned have clearly shown that they still recognized the
validity of the contracts in question."
[41] In the first place -and this is expressly stated earlier in the
Judgment (p. 35) - it follows from this reasoning that the Court found it
necessary, in order to reply to submission 2 a of the German Government's
Application in the suit then under consideration, to decide, though as an
incidental and preliminary point, the question raised by Poland's contention
that the contract of December 24th, 1919, the transfer of ownership (i.e. of
the Chorz�w factory to the Oberschlesische) effected on January 28th-29th
following, the Auflzssung and the entry in the land register, were
fictitious and fraudulent.
[42] Again it follows, amongst other things, that the Court found in the
arguments of Poland nothing calculated to modify, from the standpoint of
municipal law, the conclusion at [p19] which it arrived on the basis of
international law; but that, on the contrary, the Oberschlesische's right of
ownership of the Chorz�w factory was established, "its name having been duly
entered as owner in the land register". This latter part of the sentence
cannot be regarded either as constituting the only reason upon which the
Court based the result at which it arrived, nor as dependent upon failure to
act in the manner indicated in the lines which follow it in the above
quotation. These lines are rather to be regarded as containing an additional
argument, drawn from generally accepted international law. Though from the
use of the present tense it may be concluded that the Court had in view the
possibility of the institution by Poland, even after the judgment, of
proceedings with a view to obtaining the annulment of the entry by means of
a decision of the competent municipal tribunals, it would be contrary to the
whole of the reasoning to construe it as a reservation implying that the
binding effect of the Judgment given - and more especially of paragraph 2 a
of the operative part thereof ("that the attitude of the Polish Government
in regard to the Oberschlesische Stickstoffwerke and Bayerische
Stickstoffwerke Companies was not in conformity with Article 6 and the
following articles of the Geneva Convention") - were to depend on the result
of such proceedings instituted subsequently. Such a reservation would in
fact have the result of depriving conclusion 2 a of the Judgment of its
logical and necessary foundation, and would thus give that conclusion merely
the character of a provisional decision.
[43] And the Court has also expressed itself to this effect in Judgment No.
8 (p. 15). It there stated, in regard to the transfer of the factory to the
Oberschlesische, that it held -amongst other things -"that the
Oberschlesische's right of ownership must be regarded as established, and
could have been disputed only before a competent tribunal". As regards the
passage appearing on page 31 of Judgment No. 8, which runs as follows:
". . . . it follows that once dispossession has taken place without previous
investigation of the right of ownership, the possible undertaking of this
investigation in order to justify such dispossession after it has taken
[p20] place, cannot undo the fact that a breach of the Geneva Convention has
already taken place, or affect the Court's jurisdiction",
this also seems to show that, in the intention of the Court, subsequent
action on the part of the Polish Government to justify, after the event, its
attitude in respect of the Oberschlesische, could not enter into account.
[44] Having thus established the meaning to be attributed to the passage in
regard to which it has been requested to construe Judgment No. 7, the Court
will now proceed to consider the scope of the Judgment, which scope forms
the subject of submission No. 2 of the German Application.
[45] As has been recalled above, the Court, by that Judgment, decided that
the attitude of the Polish Government in regard to the Oberschlesische was
not in conformity with the provisions of the Geneva Convention. This
conclusion, which has now indisputably acquired the force of res judicata,
was based, amongst other things, firstly, on the finding by the Court that,
from the standpoint of international law, the German Government was
perfectly entitled to alienate the Chorz�w factory, and, secondly, on the
finding that, from the standpoint of municipal law, the Oberschlesische had
validly acquired the right of ownership to the factory - and these findings
constitute a condition essential to the Court's decision. The finding that,
in municipal law, the factory did belong to the Oberschlesische is
consequently included amongst the points decided by the Court in Judgment
No, 7, and possessing binding force in accordance with the terms of Article
59 of the Statute. The very context in which the passage in question occurs
is calculated to establish the right of ownership of the Oberschlesische
from the standpoint of municipal law.
[46] The Court's Judgment No. 7 is in the nature of a declaratory judgment,
the intention of which is to ensure recognition of a situation at law, once
and for all and with binding force as between the Parties; so that the legal
position thus established cannot again be called in question in so far as
the legal effects ensuing there from are concerned.
[47] The Court has had occasion in Judgment No. 7 (p. 19) to state its
opinion upon the question whether Article 59 of the Court's Statute prevents
it from rendering purely [p21] declaratory judgments; it answered this
question in the negative, stating that the object of Article 59 is simply to
prevent legal principles accepted by the Court in a particular case from
being binding also upon other States or in other disputes.
[48] In this connection, the Court thinks it right to make the following
statement: The proceedings on the merits in the case concerning the
compensation claimed by the German Government on the basis of Judgment No. 7
are still pending, and the written procedure will not be terminated until
March 1st, 1928. Judging from the observations of the Agent for the Polish
Government, it is possible that that Government may wish in this suit to
rely, on the result of the action brought by it before the Tribunal of
Katowice against the Oberschlesische. No plea of litispendency has been
formulated in this connection. At all events, the obligation incumbent upon
the Court under Article 60 of the Statute to construe its judgments at the
request of any Party, cannot be set aside merely because the interpretation
to be given by the Court might possibly be of importance in another case
which is pending. The interpretation adds nothing to the decision, which has
acquired the force of res judicata, and can only have binding force within
the limits of what was decided in the judgment construed.
[49] Moreover, the Court, when giving an interpretation, refrains from any
examination of facts other than those which it has considered in the
judgment under interpretation, and consequently all facts subsequent to that
judgment. Similarly, the Court abstains from any consideration of the effect
which the judgment to be construed might exercise upon submissions made by
the Parties in another case or otherwise brought to its knowledge. It
confines itself to explaining, by an interpretation, that upon which it has
already passed judgment.
***
[50] FOR THESE REASONS,
The Court, having heard both Parties,
gives judgment as follows, by eight votes to three: [p22]
That, in Judgment No. 7, the Court did not reserve to the Polish Government
the right of asking by process of law, even after the rendering of that
Judgment and with application to that particular case, for a declaration
that the entry, in pursuance of the Agreement of December 24th, 1919, of the
name of the Oberschlesische Stickstoffwerke A.-G. in the land registers as
owners of the Chorz�w factory is null and void; but that, by the aforesaid
Judgment, the Court meant to recognize, with binding effect between the
Parties concerned and in respect of that particular case, amongst other
things, the right of ownership of the Oberschlesische Stick�stoffwerke A.-G.
in the Chorz�w factory under municipal law.
[51] Done in English and French, the French text being authoritative, at the
Peace Palace, The Hague, this sixteenth day of December 1927, in three
copies, one of which is to be placed in the archives of the Court and the
others to be forwarded to the Agents of the applicant and respondent Parties
respectively.
(Signed) Max Huber,
President.
(Signed) A. Hammarskj�ld;
Registrar.
[52] Mr. Moore, Judge, took part in the discussion and voted for the
adoption of the present Judgment, but had to leave The Hague before judgment
was delivered.
[53] M. Anzilotti, Judge, declaring that he is unable to concur in the
Judgment delivered by the Court, and availing himself of the right conferred
on him by Article 57 of the Statute, has delivered the separate opinion
which follows hereafter.
(Initialled) M. H.
(Initialled) A. H. [p23]
Dissenting Opinion by M. Anzilotti.
[Translation.]
[54] In my opinion the Court should have ruled that the request for an
interpretation by the German Government could not be entertained; and that
on the following grounds:
[55] 1. The question which arises in the first place is what is to be
understood by a "dispute as to the meaning or scope of the judgment" in the
terms of Article 60 of the Statute.
[56] I must begin by saying that I regard proceedings for interpretation as
contentious proceedings, the subject matter of which is constituted by the
dispute contemplated in the article, and in which the Court has to give
judgment upon the submissions of the Parties just as in any other
contentious proceedings. In my opinion Article 60 of the Statute contains a
clause establishing the compulsory jurisdiction of the Court for a certain
category of disputes.
[57] The first object of Article 60 being to ensure, by excluding every
ordinary means of appeal against them, that the Court's judgments shall
possess the formal value of res judicata, it is evident that that article is
closely connected with Article 59 which determines the material limits of
res judicata when stating that "the decision of the Court has no binding
force except between the Parties and in respect of that particular case" :
we have here the three traditional elements for identification, persona,
petitum, causa petendi, for it is clear that "that particular case" (le cas
qui a �'t� d�cid�) covers both the object and the grounds of the claim.
[58] It is within these limits that the Court's judgment is binding, and it
is within these same limits that Article 60 provides that any Party shall
have the right, in the event of a dispute, to request the Court to construe
it. It appears to me to be clear that a binding interpretation of a judgment
can only have reference to the binding portion of the judgment construed.
[59] 2. To say that the request for an interpretation can only relate to the
binding part of the judgment is equivalent to [p24] saying that it can only
relate to the meaning and scope of the operative part thereof, as it is
certain that the binding effect attaches only to the operative part of the
judgment and not to the statement of reasons.
[60] The grounds of a judgment are simply logical arguments, the aim of
which is to lead up to the formulation of what the law is in the case in
question. And for this purpose there is no need to distinguish between
essential and non-essential grounds, a more or less arbitrary distinction
which rests on no solid basis and which can only be regarded as an
inaccurate way of expressing the different degree of importance which the
various grounds of a judgment may possess for the interpretation of its
operative part.
[61] When I say that only the terms of a judgment are binding, I do not mean
that only what is actually written in the operative part constitutes the
Court's decision. On the contrary, it is certain that it is almost always
necessary to refer to the statement of reasons to understand clearly the
operative part and above all to ascertain the causa petendi. But, at all
events, it is the operative part which contains the Court's binding decision
and which, consequently, may form the subject of a request for an
interpretation.
[62] 3. Having said this, it seems to me that in so far as the first of the
submissions made by the German Government is concerned, the Court need
merely place on record the following declaration, which is to be found on
page 6 of the Observations of the Polish Government upon the request for
interpretation of Judgments Nos. 7 and 8 :
[Translation.] -"Passing now from the grounds for Judgment No. 7 to its
operative part, it should be observed that the Polish Government has never
claimed, nor does it now claim, that by the latter a right was reserved to
that Government of cancelling by process of law the agreement of December
24th, 1919, and the entry in the land registers, in pursuance of this
agreement, of the Oberschlesische as owners. Such a reservation, or even a
recognition of the right in question, would moreover have been purposeless."
[63] This declaration is incompatible with the existence of any dispute
coming within the terms of Article 60 of the Statute, [p25] as interpreted
above, and reduces the divergence between the views of the two Governments
to a question of words.
[64] As to the second of the submissions made by the German Government, the
situation is different. In my opinion, the real proposition, which is
concealed in somewhat obscure language, must be understood as follows: The
Court, on being made cognizant of the German Government's Application of May
15th, 1925, found it necessary to give a decision, and did in fact do so, in
regard to the Oberschlesische's right of ownership, and this decision is
final and binding even in respect of the claim for compensation now pending
before the Court.
[65] I shall now proceed to consider the question whether a request for an
interpretation having this object can be entertained.
[66] 4. It is a well-known principle that the objective limits of res
judicata are determined by the claim.
[67] The German Government's claim on which Judgment No. 7 was based was, in
so far as relates to the present case, formulated as follows in No. 2 a of
the submissions of that Government:
"To give judgment .... that the attitude of the Polish Government in regard
to the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke
Companies was not in conformity with Article 6 and the following articles of
the Geneva Convention."
[68] No claim for restitution or compensation was then made by the German
Government, which, according to the statements of its Agent, only sought to
obtain a declaratory judgment. It should also be recalled that the claim
reproduced above and relating to the Oberschlesische and Bayerische
Companies was submitted as being the application in an individual case,
chosen from amongst several of a more general claim, that is to say the
claim to the effect that Articles 2 and 5 of the Polish law of July 14th,
1920, were not in conformity with Article 6 and the following articles of
the Geneva Convention.
[69] In accordance with the German Government's claim, the Court, after
having decided that the application both of Article 2 and of Article 5 of
the Polish law of July 14th, 1920, in Polish Upper Silesia constituted a
measure contrary to [p26] Article 6 and the following articles of the
Convention in question, laid down in paragraph 2a of the operative part of
the judgment, "that the attitude of the Polish Government in regard to the
Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies was
not in conformity with Article 6 and the following articles of the Geneva
Convention".
[70] 5. It is certain that before arriving at this conclusion the Court had
also to consider the question whether, under German municipal law, the
Oberschlesische Company was indeed the owner of the Chorz�w factory ; for
only if that was the case would the dispossession of the Company by the
Polish Government constitute a measure contrary to the Geneva Convention.
[71] And the Court did in fact say that it would consider the question from
this point of view also. At the same time, however, it expressly stated
that, in the exercise of the jurisdiction bestowed by Article 23 of the
Geneva Convention, it would only consider as an incidental or preliminary
point the question whether any rights existed under German law.
[72] It is therefore clear that the decision in regard to the question
whether the Oberschlesische was the owner of the property of which it was
dispossessed, can only be regarded as an incidental or, more exactly, as a
preliminary decision to that which the Court had to give upon the claim of
the Applicant. The German Government expressly admits this.
[73] 6. No one denies or could deny that the Oberschlesische's right of
ownership is to be regarded as having been established once and for all in
so far as concerns the question decided by Judgment No. 7; that is to say,
the non-conformity of the attitude adopted by the Polish Government in
regard to - that Company with Article 6 and the following articles of the
Geneva Convention.
[74] It is, moreover, clear that, under a generally accepted rule which is
derived from the very conception of res judicata, decisions on incidental or
preliminary questions which have been rendered with the sole object of
adjudicating upon the Parties' claims (incidenter tantum) are not binding in
another case. [p27]
[75] Does this general rule also cover the case of an action for indemnity
following upon a declaratory judgment in which the preliminary question has
been decided ?
[76] In my opinion that is in reality the question submitted to the Court;
and there seems to me to be no doubt that that question is neither a
question involving the interpretation of the operative part of Judgment No.
7, which has been referred to earlier in this note, nor a question involving
the interpretation of the operative part of Judgment No. 8, which was merely
a decision as to the jurisdiction of the Court to take cognizance of the
action for indemnity. It is a question which exclusively relates to
proceedings actually pending before the Court, and must consequently be
considered and adjudicated upon in those proceedings and not by the indirect
method of an interpretative judgment.
[77] 7. In coming to this conclusion, I have relied upon principles
obtaining in civil procedure; this I feel justified in doing for the
following reasons:
[78] As I have already observed, the Court's Statute, in Article 59, clearly
refers to a traditional and generally accepted theory in regard to the
material limits of res judicata; it was only natural therefore to keep to
the essential factors and fundamental data of that theory, failing any
indication to the contrary, which I find nowhere, either in the Statute
itself or in international law.
[79] In the second place, it appears to me that if there be a case in which
it is legitimate to have recourse, in the absence of conventions and custom,
to "the general principles of law recognized by civilized nations",
mentioned in No. 3 of Article 38 of the Statute, that case is assuredly the
present one. Not without reason was the binding effect of res judicata
expressly mentioned by the Committee of Jurists entrusted with the
preparation of a plan for the establishment of a Permanent Court of
International Justice, amongst the principles included in the
above-mentioned article (Minutes, p.335).
(Signed) D. Anzilotti.
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