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[p88]
[1] The Permanent Court of International Justice,
[2] composed as above,
[3] Having regard to Article 31 of the Statute and Article 71 of the Rules
of Court,
[4] Having regard to the written statements filed, on July 1st, 1931, on
behalf of the Austrian, Czechoslovak, French, German and Italian
Governments, [p89]
[5] Whereas, on July 17th, 1931, the Court, after considering the
application of Article 31 of the Statute and Article 71 of the Rules of
Court in the case concerning the Customs r�gime between Germany and Austria,
decided that it was not called upon to pronounce upon the question unless it
was officially made cognizant of it;
[6] Having regard to the letter from the Agent for the Austrian Government
of July 17th, 1931, whereby that Agent officially made the Court cognizant
of this question, at the same time indicating that should the Court decide
that the said articles were applicable, his Government would appoint a judge
ad hoc;
[7] Having regard to the letter of the Agent for the Czechoslovak Government
dated July 18th, 1931, whereby, in view of the fact that the Court had been
made cognizant of the question above mentioned, that Agent officially
informed the Court that, in the event of judges ad hoc being sanctioned in
the present case, the Czechoslovak Government appointed one;
[8] After hearing the observations of the Agents of the Governments at
present represented before the Court;
[9] Whereas the Austrian and Czechoslovak Governments have relied on the
provisions of Article 71, paragraph 2, of the Rules, and of Article 31 of
the Statute;
[10] Whereas, under Article 71, paragraph 2, of the Rules, in a question
relating to an existing dispute between two or more States or Members of the
League of Nations, Article 31 of the Statute shall apply;
[11] Whereas the question submitted to the Court for advisory opinion does
in fact relate to an existing dispute;
[12] Whereas, under Article 31, paragraphs 3 and 4, of the Court's Statute,
if the Court includes upon the Bench no judge of the nationality of the
Parties, each of these may proceed to select or choose a judge and, should
there be several Parties in the same interest, they shall for the purpose of
the application of this article be reckoned as one Party only;
[13] Whereas all governments which, in the proceedings before the Court,
come to the same conclusion, must be held to be in the same interest for the
purposes of the present case; [p90]
[14] Whereas, on the one hand, the arguments advanced by the German and
Austrian Governments lead to the same conclusion, whereas, on the other
hand, the arguments advanced by the French, Italian and Czechoslovak
Governments lead to the opposite conclusion;
[15] Whereas, therefore, for the purposes of the present case, the German
and Austrian Governments, on the one hand, and the French, Italian and
Czechoslovak Governments, on the other, are respectively in the same
interest in the present proceedings before the Court within the meaning of
Article 31 of the Statute;
[16] Whereas the Court as at present composed includes upon the Bench judges
of German, French and Italian nationality,
[17] Decides:
That there is no ground in the present case for the appointment of judges ad
hoc either by Austria or Czechoslovakia.
[18] Done in English and French, the French text being authoritative, at the
Peace Palace, The Hague, this twentieth day of July, nineteen hundred and
thirty-one, in six copies, one of which is to be placed in the archives of
the Court and the remainder to be transmitted to the respective Agents of
the German, Austrian, French, Italian and Czechoslovak Governments, on the
occasion of the delivery of the Court's advisory opinion on the question at
present before it.
(Signed) M. Adatci,
President.
(Signed) �. Hammarskj�ld,
Registrar.
[19] MM. Adatci, Rostworowski, Altamira, Anzilotti and Wang declare
themselves unable to concur in the order in so far as they have indicated
their dissent there from in the following joint separate opinion. [p91]
Dissenting Opinion.
[20] The undersigned,
[21] Whereas the question submitted to the Court for advisory-opinion
according to its actual terms only relates to Austria's international
obligations towards States which have signed the Treaty of Saint-Germain and
Protocol No. I of Geneva of October 4th, 1922; as, in these conditions,
Austria is a Party to the dispute with reference to which the Court's
opinion is asked, whereas Germany is not;
[22] Whereas Germany's intervention in the present proceedings, under the
terms of Article 73 of the Rules of Court, cannot endow her with the
capacity of a Party to the dispute in question; as accordingly, the question
whether, Germany and Austria being in the same interest, Article 31,
paragraph 4, of the Statute should be applied, does not arise,
[23] Are of opinion:
[24] That Austria was entitled to appoint a judge ad hoc in accordance with
paragraph 2 of the said Article 31.
(Signed) M. Adatci.
( � ) Rostworowski.
( ,, ) Rafael Altamira.
( ,, ) Anzilotti.
( ,, ) Wang Chung-Hui.
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