the Government of the Kingdom of Belgium, represented by M. F. Muûls, as Agent,
the Government of the Spanish Republic, represented by M. J. M. de Semprun y Gurrea, as Agent,
The Court, composed as above, delivers the following judgment :
On February 20th, 1937, the Belgian and Spanish Governments concluded the following Special Agreement :
The Belgian Government and the Government of the Spanish Republic,
A controversy having arisen between them à propos the death of Baron Jacques de Borchgrave ;
Having reached agreement to submit the dispute, by means of a Special Agreement, to the decision of the Permanent Court of International Justice in accordance with Articles 36 and 40 of the Court's Statute and Article 35 of the Rules of Court ;
For this purpose they have appointed as their plenipotentiaries :
For the Belgian Government :
H.E. M. Paul Spaak, Minister for Foreign Affairs ;
For the Spanish Government :
H.E. M. Angel Ossorio y Gallardo, Spanish Ambassador in Brussels ;
These plenipotentiaries, having exchanged their full powers and found them to be in good and due form, have agreed as follows :
Article 1.—The Permanent Court of International Justice is requested to say whether, having regard to the circumstances of fact and of law concerning the case, the responsibility of the Spanish Government is involved.
Article 2.—The present Agreement shall take effect on the date of signature and may be notified to the Registrar of the Court by either of the contracting Governments.
Done at Brussels, February 20th, 1937.
On the same date, the filing of the Special Agreement was notified to the Spanish Government, in accordance with Article 33, paragraph 2, of the Rules ; on March 10th, 1937, the communications provided for in Article 40 of the Statute and Article 34 of the Rules were duly despatched.
As the Court, at the commencement of the proceedings, included on the Bench no judge of Belgian nationality, the Belgian Government availed itself of its right under Article 31 of the Statute and nominated Professor Ch. De Visscher. Subsequently, on May 27th, 1937, M. De Visscher was elected by the Assembly and Council of the League of Nations to be a member of the Court, and it was in this capacity that he sat in the case.
By an Order made on April 1st, 1937, the President of the Court, as the Court was not sitting, fixed the time-limits for the filing of a Memorial by the Belgian Government, a CounterMemorial by the Spanish Government, a Reply by the Belgian Government and a Rejoinder by the Spanish Government.
In its Memorial, filed on May 15th, 1937, within the prescribed time-limit, the Belgian Government prayed the Court :
To adjudge and declare that the responsibility of the Spanish Government is involved on account of the crime committed on the person of Baron Jacques de Borchgrave ;
To adjudge and declare that the Spanish Government is responsible for not having used sufficient diligence in the apprehension and prosecution of the guilty.
Within the time-limit fixed for the filing of the CounterMemorial, the Spanish Government presented on June 29th, 1937, a document entitled "The Borchgrave Case—Memorial submitting preliminary objections filed by the Spanish Government." This document concludes with the following submissions :
The Government of the Spanish Republic has the honour to request the Court :
(1) To declare that it has no jurisdiction to examine or adjudicate upon the question of the responsibility imputed to the Spanish Government in the second submission of the Memorial of the Belgian Government, concerning the Spanish Government’s alleged lack of diligence in the apprehension and prosecution of the guilty.
(2) To declare that the Belgian Government’s claim cannot be entertained in regard either to the first or to the second of the submissions contained in its Memorial, owing to the fact that the remedies afforded by Spanish municipal law have not been exhausted.
Within the time-limit thus fixed, the Belgian Government presented its observations and asked the Court :
I. 1. To adjudge and declare that the objection as to the nonexhaustion of the remedies afforded by municipal law cannot be entertained ;
2. As an alternative, to adjudge and declare that this objection is ill-founded ;
3. As a further alternative, to adjudge and declare that the objection be joined to the merits ;
II. 1. To adjudge and declare that the objection to the effect that the Court has no jurisdiction to examine the question of the responsibility of the Spanish Government on account of lack of diligence in the apprehension and prosecution of the guilty is ill-founded ;
2. As an alternative, to adjudge and declare that the objection be joined to the merits.
In the course of public sittings held on October 18th, 19th and 20th, 1937, the Court heard :
M. Sanchez Roman, Advocate, on behalf of Spain,
and M. Muûls, Agent, and Maître Delacroix, Advocate, on behalf of Belgium.
The Agent for the Spanish Government having expressed the desire of his Government to use the Spanish language in the proceedings, the Court, by an Order made on May 13th, 1937, authorized him "to present his oral arguments before the Court in the Spanish language" causing them to "be immediately followed by an oral translation arranged for by him into one of the official languages provided for by the Statute" ; these conditions were observed by the Advocate for the Spanish Government in presenting the case for his Government.
The submissions formulated by the Belgian Government in the documents of the written proceedings were maintained by it in their entirety in the oral arguments.
On the other hand, the representative of the Spanish Government, in his oral reply, made the following submissions, asking the Court :
1. to declare itself to have no jurisdiction to examine or adjudicate upon the question of the responsibility imputed to the Spanish Government in the second submission of the Memorial of the Belgian Government of May 15th ;
These new conclusions having been presented, the President of the Court asked the Advocate for the Spanish Government whether he withdrew the original second preliminary objection as such, but maintained it as a means of defence in order that it might be joined to the merits for the Court to pronounce upon it at that time. To this question, the Advocate for the Spanish Government answered in the affirmative.
Documents in support of their contentions were filed on behalf of each Party1.
The above being the state of the proceedings, the Court must now adjudicate.
The present proceeding relates only to the preliminary objections presented by the Spanish Government. For the clarity of the judgment, it will suffice to set forth the following facts, as alleged :
During the later months of 1936, Baron Jacques de Borchgrave, a Belgian national resident in Madrid, collaborated in the work of the Belgian Embassy in Madrid. He left the Embassy by automobile on December 20th, 1936, and never returned. On the same day, his disappearance was notified by the Embassy to the Spanish civil and military authorities. A body found on the route from Madrid to Fuencarral on December 22nd, five kilometres from Madrid, was later identified as the body of Baron Jacques de Borchgrave. Some days thereafter, the automobile in which Baron Jacques de Borchgrave had left the Embassy was retrieved in Madrid.
The Spanish Government supports its objection with the following arguments. The two submissions in the Belgian Government’s Memorial relate to two different responsibilities, the one for the death of Baron Jacques de Borchgrave, the other for a lack of diligence in apprehending and prosecuting the guilty. The Spanish Government contends that the Special Agreement of February 20th, 1937, ought to be interpreted strictly, and that, thus interpreted, the Special Agreement refers only to responsibility by reason of the fact of the death of Baron Jacques de Borchgrave, and does not refer to facts subsequent to the death. The accusation concerning an alleged lack of diligence termed denial of justice, contained in a Belgian note of January 18th, 1937, was abandoned prior to the signing of the Special Agreement ; it would be unreasonable to suppose that, sixty days after the disappearance of Baron Jacques de Borchgrave, while its investigation of the matter was still in progress, the Spanish Government would have agreed to submit the question of responsibility for lack of diligence to the Court. Finally, the diplomatic correspondence, both before and after February 20th, shows that the Belgian Government had no intention to include the question of this responsibility in the Special Agreement. That question having been excluded from the Special Agreement, it can, if necessary, be brought before the Court by an Application filed by the Belgian Government.
In reply, the Belgian Government contends that the two submissions in its Memorial relate, not to two distinct responsibilities, but to two different reasons for the responsibility of the Spanish Government ; that the very general provisions of the Special Agreement include the question of responsibility both for the death of the victim and for a lack of diligence in apprehending and punishing the guilty. The diplomatic correspondence antedating the Special Agreement indicates that this had been the intention of the Parties, one of the essential points in the discussion having been the reproach made by the Belgian Government that the Spanish Government had failed, after the death of Baron Jacques de Borchgrave, to take prompt and effective measures ; and neither in giving up its intention to institute proceedings before the Court by means of an Application nor in any other way had the Belgian Government abandoned any part of its claims.
The issue thus raised before the Court depends upon the interpretation of the Special Agreement of February 20th, 1937.
Such is the whole of the substance of the Special Agreement. So unlimited are its terms, so free is the text from qualifying expressions, that the Agreement may be said to be characterized by its generality.
The "case" submitted to the Court is obviously the "dispute" which the Parties state that they had reached agreement ta submit to it. That "dispute" emerged in a controversy à propos the death of Baron Jacques de Borchgrave. The term à propos is in no sense limitative, and in itself it sets no restriction on the jurisdiction of the Court. Nor is it of any significance that Article 1 refers to "the" (la) responsibility of the Spanish Government, in the singular ; for the whole expression "the responsibility" is general.
In dealing with the question formulated in the Special Agreement, it is necessary to determine what were the respective contentions advanced by the two Governments in the various diplomatic notes exchanged after the disappearance of Baron Jacques de Borchgrave on December 20th, 1936, and prior to the signature of the Special Agreement on February 20th, 1937.
From the time of the disappearance of Baron Jacques de Borchgrave, the Belgian Embassy sought the assistance of the Spanish authorities in clearing up the facts, and immediately after the identification of his body the Embassy asked that an investigation be instituted. On December 30th, 1936, the Belgian Chargé d’affaires at Madrid addressed a note to the Spanish Minister for Foreign Affairs, demanding an enquiry in which the
On January 5th, the Belgian Chargé d’affaires complained that the information which he had given since December 20th had not been followed up. On the other hand, he took note of the Spanish Government’s agreement that he should be associated in the whole of the enquiry. Two days later, he transmitted a communication from the Belgian Government, in which it stated that information in its possession indicated "that the responsibility of the Spanish Government is gravely engaged" ; that the Spanish Government had not proceeded actively to the impartial enquiry demanded ; and that no effective measure had been taken with reference inter alia to the punishment of the guilty. In consequence, proceeding on the principles of international law relating to the responsibility of States, the Belgian Government demanded as reparation : (1) an expression of the Spanish Government’s excuses and regrets ; (2) transfer of the corpse to the port of embarcation with military honours ; (3) the payment of an indemnity of one million Belgian francs in favour of the persons entitled ; and (4) just punishment of the guilty.
The Spanish Government, in its reply on January 10th, repeated the expression of its regrets and explained why military honours had not been paid to the corpse of Baron Jacques de Borchgrave ; it stated that the investigations undertaken would be continued, various questions remaining to be cleared up. As to the indemnity demanded, denying the existence of any legal basis of responsibility, it expressed the willingness of the Spanish Government to discuss the question of a payment to be made on moral grounds, i.e., ex gratia.
On January 18th, the Belgian Minister for Foreign Affairs stated that in the view of his Government the responsibility of the Spanish Government was already (dès à présent) involved, if only in consequence of the fact that one month after the death of Baron Jacques de Borchgrave it had not proceeded effectively to the apprehension of the guilty, "this failure clearly constituting a denial of justice" ; he expressed a hope that the indemnity demanded would be paid at once, without awaiting the results of the enquiry, adding that by meeting this expectation the Spanish Government would avoid on this important point the persistence of a dispute which might have serious repercussions in the relations of the two States.
Reply was made by the Spanish Government on January 26th. The Spanish Government thought that on three of the four points covered by its note of January 14th, the Belgian Government had been satisfied. On the fourth point as to the payment of a sum of money, it expressed a willingness to accept either of two solutions : (1) to submit the case (le cas) to the Court ; or (2) to discuss the question of a payment to be made on a purely moral basis. Referring to the Belgian note of January 18th and to the arbitrary fixing of the sum demanded, the Spanish Government recalled its note of January 14th, and instead of awaiting the taking of initiative by the Belgian Government, suggested the immediate submission of the case (le cas) to the Court.
After January 26th, the Ministers for Foreign Affairs of Belgium and Spain engaged in a conversation at Saint-Quentin in France, following which the Spanish Ambassador at Brussels addressed to the Belgian Minister for Foreign Affairs a new note, on February 1st, in which it was explained that in invoking the jurisdiction of the Court, the Spanish Government desired, not the solution of an "economic problem", but a decision as to its "legal obligations in relation to (en relation avec) the Borchgrave affair" ; that Spain wished to "defend its right, not its interests", and to set forth clearly the motives
On February 4th, the Belgian Government replied that the Spanish note of February 1st, joined to the declarations made in the Spanish note of January 14th, could be considered to have produced a solution acceptable on both sides ; that while the Belgian Government had intended to file an application unilaterally seizing the Court of the dispute relating to the responsibility of the Spanish Government, it accepted the proposal to take the case before the Court by common accord ; and that agreement having been reached on this point, it took note that the payment of a million francs would be made immediately.
The signing of the Special Agreement followed on February 20th, and the payment of the sum fixed was effected.
From this analysis of the notes exchanged by the Parties, only one conclusion is possible. The accord reached in the course of the correspondence related to the general question of the legal responsibility of the Spanish Government in connection both with the fact of the death of Baron Jacques de Borchgrave and with the measures taken after the death for the apprehension and punishment of the guilty. From December 30th on, the Belgian Government insisted on the necessity of a prompt investigation; from January 5th on, it complained of delay; from January 7th on, it contended that the responsibility of the Spanish Government was engaged, and persisted in its demand for an indemnity on the basis of a legal responsibility ; if in the beginning the fact of the death of Baron Jacques de Borchgrave was envisaged as the basis of the alleged responsibility, it was clear, after the allegation of a denial of justice in the Belgian note of January 18th, that a wider basis was contended for ; and the allegation of a denial of justice was in no way abandoned in the Belgian note of February 4th. On the other hand, the Spanish Government met the Belgian attitude with a persistent denial of any legal responsibility ;
This accord was faithfully expressed in the Special Agreement of February 20th, which leaves no room for a contention that the legal basis of the responsibility upon which the Court is asked to decide may not be sought in the alleged lack of diligence on the part of the Spanish Government in apprehending and punishing the guilty.
Nor is this conclusion as to the scope of the Special Agreement to be modified as a consequence of any construction placed on its provisions by the Parties, subsequently to the date of signature. The fact that the Belgian Government continued, after its note of February 4th, and even after February 20th, to press for the expedition of the enquiry, and the fact that on May 14th, in protest against the alleged delay, it renounced further co-operation in the enquiry, are without significance in this connection. On the other hand, it may be thought significant that, in its note of May 25th, the Spanish Government stated that at the then existing stage of the procedure the diplomatic channel was not the appropriate channel for discussing the course which it had taken in the enquiry, and deplored the protest made in the Belgian note of May 14th, at a time when the case had already long before been formally submitted to the jurisdiction of the Court. The position taken by the Spanish Government after the signature of the Special Agreement tends thus to confirm the construction to be placed on the provisions of the Agreement.
The history of the controversy between the Parties à propos the death of Baron Jacques de Borchgrave, and the accord reached in, the notes exchanged for submitting the dispute to the Court, lead to the conclusion that the Special Agreement of February 20th gives the Court jurisdiction to examine the second submission in the Memorial of the Belgian Government relating to the alleged lack of diligence on the part of the Spanish Government in apprehending and prosecuting the guilty.
In the course of the oral proceedings, on October 18th, 1937, the Advocate for the Spanish Government stated that he withdrew the second objection of the Spanish Government as a preliminary objection in the proceedings and asked the Court "to join that objection to the merits of the case". Moreover, at the conclusion of his oral argument, on October 20th, 1937, the Advocate for the Spanish Government asked the Court "to join the second objection of our Memorial of the month of June to the merits of the case and accordingly to postpone it, without deciding upon it at this time, until the judgment on the merits". On being questioned by the President, the Advocate for the Spanish Government confirmed that he withdrew the second objection as a preliminary objection but maintained it as a part of his defence in order that it might be joined to the merits and adjudicated upon by the Court in connection therewith. The Belgian submissions in regard to this objection were expressly maintained.
It follows from the foregoing that there has been : (1) an express withdrawal by the Spanish Government of its second objection as a preliminary objection ; (2) a request that this objection should be joined to the merits.
The Court must therefore take note of the statements made by the Spanish Advocate and place on record that the second preliminary objection has been withdrawn as a preliminary objection concerning the admissibility of the submissions in the Belgian Memorial of May 15th, 1937. In these circumstances, there is no need to adjudicate upon the Belgian submissions in regard to this objection.
Under Article 62, paragraph 5, of the Rules, it is possible to join to the merits only objections which are before the Court. The withdrawal of the preliminary objection leaves nothing of it as such to be joined to the merits.
The Court would observe that the present proceeding is confined to the examination of the preliminary objections, and
For these reasons,
The Court, unanimously,
(1) Overrules the first preliminary objection by which the Spanish Government asked the Court to say that it lacked jurisdiction to examine and to decide upon the second submission contained in the Memorial of the Belgian Government filed with the Registry of the Court on May 15th, 1937, relating to the alleged lack of diligence of the Spanish Government in the apprehension and prosecution of the guilty.
(2) Takes note of the withdrawal of the second preliminary objection contained in the Memorial of the Spanish Government filed with the Registry of the Court on June 29th, 1937, relating to the alleged failure to exhaust means of redress afforded by the Spanish municipal law.
(3) States that it will proceed by an Order which will be attached to this judgment to fix the time-limits to be granted to the two Parties for the continuance of the proceedings.
The present judgment has been drawn up in English and French, in accordance with the provisions of Article 39, paragraph 2, of the Statute, the English text being authoritative.
Done at the Peace Palace, The Hague, this sixth day of November, one thousand nine hundred and thirty-seven, in three copies, one of which will be deposited in the archives of the Court and the others will be communicated to the Government of the Kingdom of Belgium and to the Government of the Spanish Republic, respectively.