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 9th, in accordance with Article 40 of the Statute and Article 35 of the Rules of Court, the Government of the Czechoslovak 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 Pázmány 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 Pázmány University of Budapest against the State of Czechoslovakia and upon the objection 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
That the Royal Hungarian Peter Pázmány University, of Budapest, is not justified in claiming the restitution by the Czechoslovak 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 Pázmány University of Budapest ;
To declare the aforesaid judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal null and void ;
To modify the aforesaid judgment, and to dismiss the Applicant’s claim ;
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 judgment in case No, 221, dismissing the Applicant’s claim ;
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 9th, 1933, notice of the Application was given to the Hungarian Government through the Hungarian Legation at The Hague. On May 13th, 1933, the communications provided 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, 1933, 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 Government 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.
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-Czechoslovak 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 rule 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-Czechoslovak Mixed Arbitral Tribunal, dated February 3rd, 1933, on the grounds stated therein, or others, in addition ;
that it awards the costs of the appeal against the appellant State".
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 :
and M. Gajzago, Agent, on behalf of Hungary.
Pursuant to a decision of the Court taken on 20 October 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 question of the nature of the jurisdiction 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 observations1.
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 10th, 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
In these circumstances, the Agent for the Czechoslovak Government, at the conclusion of his oral reply, confined himself to asking the Court for judgment in accordance with the "final submissions" presented by him in his first oral statement. 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 Pázmány University of Budapest against the Czechoslovak State ;
that the Royal Hungarian Peter Pázmány 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 Pázmány 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 Pázmány University against the Czechoslovak State with the Mixed Arbitral Tribunal ;
alternatively : to amend the said judgment and dismiss the Applicant’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."
As annexes to the documents of the written proceedings, numerous documents in support were filed on behalf of both Parties1.
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 proceedings, 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 October 28th, 1933.
It was not until the hearing on October 28th, at the conclusion 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 question 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 :
1. Not to refuse to accept such of these new documents as had already been produced by the Czechoslovak Agent.
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 Government 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 considerations :
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 documents 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 Czechoslovak 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.
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 alia, that the property in question— the more important of which are the estates of Vâgsellye and Zniôvâralja—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 20th, 1926, and filed on the 27th of that month. In its objection it contended that "the claimant lacked the requisite legal capacity and that the Mixed Arbitral Tribunal had no jurisdiction" ; it prayed the latter to adjudicate upon and to uphold the objections in proceedings separate from those on the merits.
In this decision the Tribunal fixed a time-limit of two months within which the Parties were to submit written observations 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 10th, whereby the Tribunal ordered the Parties to furnish additional evidence 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 10th, 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 proceedings 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
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 composition, in July 1931. On July 9th, the Tribunal adopted, in the form of a Protocol, and as a consequence of the conclusion 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 University 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.
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, separate 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—i.e. at a date between the second and third series of pleadings and within the period allowed by the Tribunal in its Order of October 10th, 1932, for the submission of further evidence—the Royal Hungarian Director of Public Foundations applied for leave to intervene. 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-
At the hearing on January 31st, 1933, the Czechoslovak Agent declared that, as he had not been notified of the intervention, 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 admissibility. 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 Pázmány 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."
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 unnecessary 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 dispute 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 Pázmány 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
According to the terms of Article X of the Paris Agreement 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 12th, 1635, Cardinal Peter Pázmány, 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 contemporary 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 abovementioned Deed of the Cardinal and conferred upon the University 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 Losy and George Lippay, two of the successors of Pázmány 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
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 Pázmány’s Deed of Foundation. This property included most of the estates to which the dispute before the Mixed Arbitral Tribunal relates (estates of Vâgsellye and Zniôvâralja) ; it had come into the possession of the Jesuit College by a gift of the Emperor Rudolph II, King of Hungary, dated May 19th, 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 administrative 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 particular 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
Queen Maria Theresa was succeeded in 1780 by Joseph II. In 1781 the University was solemnly installed ("introduced in the right of ownership") in the possession of inter alia the Vâgsellye 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 Francis II) issued a "deed of new donation" in favour of the University now established at Pest ; by this deed the King again gave to the University, "as a perpetual endowment and foundation", the same property, inter 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 occasioned by the fact that it had been found impossible to carry out the exchanges contemplated in 1780. The deed of new donation was followed by an order of investiture, dated August 17th, 1804, and the University was installed as owner of the Zniôvâralja 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 shortlived 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 substantia] changes in Hungarian law and in the administrative 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
Secondly, Law XIX of 1848 placed the Hungarian universities 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 1849 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 Foundations. 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 XVIIth century) would not suffice to meet the requirements of the year 1870. The Government therefore asked Parliament to grant the University a subsidy from the State. In conformity with a law of 1870 (Law XVIII) on the creation and functions of the Hungarian 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 Neczpâl, 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.
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 information 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 Slovakia, and it was placed under the management and supervision of the "Central Commission for property of the Roman Catholic Church" in Slovakia. The entry into force of the Treaty of Trianon on July 26th, 1921, 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 Budapest 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 in issue and the nature and import of the measures 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 Tribunal. 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 ;
(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 paragraph (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 liquidation 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
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), Section I, 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 Hungarian 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-Herzegovinians, those who acquire ipso 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
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 12th, 1635, by which Cardinal Pázmány 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 Pázmány and invested the University which the latter had created with all the privileges of a Studium generate— 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 Czechoslovak 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 Pázmány 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 "under her gracious protection and direction", and bestowed on it the domain of the Abbey of Dunaföldvár 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 XVIIIth 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 17th, 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
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, da ted February 20th, 1932, issued in virtue of Law LIV of 1912 concerning the putting into force of the Code of Civil Procedure ; Article 101, 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 Czechoslovak 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 alia, 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 incorporation 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
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 immovable property, to receive legacies or donations, to conclude contracts, etc. A capacity of that kind is in no way inconsistent with very extensive State supervision of the University’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 University’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 opinions 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 Government’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
The University being a juridical person, its status as a Hungarian 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 Government, 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 Pázmány University of Budapest fulfilled the conditions necessary to enable it to submit a claim in virtue of Article 250 of the Treaty of Trianon.
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 juridical 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 "University Fund", and the University. At one time it apparently regarded the University as the usufructuary of property belonging 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.
That Government bases its argument principally upon the clause "titulo dotis ac perpetuae 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 personality 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 foundation, the Court is forced to conclude that the clause "titulo dotis ac perpétua 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 documents interchangeably, without distinction, whenever the University, quâ 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
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 accompanying 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 administrative case concerning the registration of a company known as "The University Press, Limited". The recitals of this decision 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 personality 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 December 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
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 connection 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 "University 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 argument would automatically fall to the ground.
However, the Court has no need to rely upon this interpretation of Hungarian law. It is content to observe that
In this connection, Article 191 first calls for considération.
The first paragraph of this Article says : "States to which territory of the former Austro-Hungarian Monarchy is transferred 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 possessions 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 members 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 191, 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, i.e. 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 (b) 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
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 property without in any way indicating how these two categories 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 Articles 191 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
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 liquidation, 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 (b) of Article 232, it will be found that the "liquidation" included in the first of these two groups of measures means the species of compulsory 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 1919-1920 with a view to the proceeds being carried to reparations account or with
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 themselves 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 administrators, 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 11th, 1919, an Ordinance was issued by the Czechoslovak Minister with full powers for the administration of Slovakia. Under this Ordinance, which is described as relating to "the compulsory administration of certain ecclesiastical property", and which refers to Article 11 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.
When this Commission was set up, the administration of the University’s property was entrusted to it. This circumstance 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, 1919, 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 supervision 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 1919 : 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
With regard to the first of these objections, the Court would simply observe that, though it is true that Article 1 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 1919, 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 constitutes 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
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 (b) of Article 232, and in paragraph 3 of the Annex following Article 233, where the expression "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, a fortiori, in regard to the "other measures" referred to in paragraph 2 of Article 250.
Moreover, the Court has on several occasions, and particularly in its Judgment of May 25th, 1926 (Judgment No. 7), expressed the opinion that a measure prohibited by an international agreement cannot become lawful under that instrument 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
In these circumstances, the Court concludes that the measures applied to the University’s estates as early as 1918-1919 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 certain 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 Government 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 question are now, or become, under the provisions of the present Treaty, or of any treaties concluded for the purpose of completing 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."
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 consequence 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 à" (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 à" (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.
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 associations, 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 delivery 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 Article 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 territory 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 jurisdiction, the Court finds itself also unable to accept the argument 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 Czechoslovak plenipotentiaries, contains inter alia the following provisions :
"(1) Each of the two contracting States shall retain the legacies, donations, scholarships and foundations of every kind existing in this territory.
(3) The Hungarian Government undertakes to surrender forthwith the two Pâlffy foundations, and will take steps to ensure that the application No. 192 relating thereto which is before the Hungarian-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, without prejudice to the legal points of view of either side.
This Protocol shall be regarded as an arrangement under Article 2 of Agreement I."
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 Pâlffy foundations—instead of forming a separate numbered paragraph, that the clause is not intended to exclude the suit between the University and the said Government from the application of the general principle of the Protocol, namely, the principle defined above, but is simply designed to reserve the question whether paragraph 1 or paragraph 2 applies to the said suit, until such time as the Mixed Arbitral Tribunal shall have decided whether the University’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 Czechoslovakia, 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,
Having thus examined and rejected the Czechoslovak Government’s various objections to the application of Article 250 of the Treaty of Trianon to the property of the Peter Pázmány 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 judgment 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 judgment would be ultra vires. 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 property 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 Government, 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 otherwise decided by the Court, each Party shall bear its own costs.
by twelve votes to one,
(1) 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 Tribunal has rightly decided (a) that it is competent to take cognizance of the claim brought by the Royal Hungarian Peter Pázmány University of Budapest, against the Czechoslovak State, under Article 250 of the Treaty of Trianon ; and (b) that the Czechoslovak Government is bound to restore to the Royal Hungarian Peter Pázmány 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 authoritative, 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 Czechoslovak Republic, respectively.
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 20th 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 appended to the judgment the dissenting opinion which follows.