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    Advisory Opinion

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    The Court, composed as above, gives the following opinion :
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    On May 19th, 1931, the Council of the League of Nations adopted the following Resolution :

    "The Council of the League of Nations has the honour to request the Permanent Court of International Justice to give an advisory opinion, in accordance with Article 14 of the Covenant, on the following question :

    Would a régime established between Germany and Austria on the basis and within the limits of the principles laid down by the Protocol of March 19th, 1931, the text of which is annexed to the present request, be compatible with Article 88 of the Treaty of Saint-Germain and with Protocol No. I signed at Geneva on October 4th, 1922 ?’

    The Council requests that the Permanent Court will be so good as to treat the present request for an advisory opinion as a matter of urgency.

    The Secretary-General is authorized to submit the present request to the Court, to give any assistance required in the examination of the question and, if necessary, to take steps to be represented before the Court."

    In pursuance of this Resolution, the Secretary-General, on May 19th, 1931, transmitted to the Court a request for an advisory opinion in the following terms :

    "The Secretary-General of the League of Nations, in pursuance of the Council Resolution of May 19th, 1931, and in virtue of the authorization given by the Council, has the honour to submit to the Permanent Court of International Justice an application requesting the Court, in accordance with Article 14 of the Covenant, to give an advisory opinion to the Council on the question which is referred to the Court by the Resolution of May 19th, 1931.

    The Secretary-General will be prepared to furnish any assistance which the Court may require in the examination of this matter, and will, if necessary, arrange to be represented before the Court."

    The request was accompanied by the German text of the Austro-German Protocol of March 19th, 1931, together with a certified true copy of Protocol No. I signed at Geneva on October 4th, 1922 (French text with English translation),

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    referred to in the Council's Resolution. The minutes of the discussion (Council meetings of May 18th and 19th, 1931) following which this Resolution was adopted, were sent subsequently. The Secretary-General also forwarded to the Court, at the latter’s request, the text of the French Government’s memorandum of May r4th, 1931, submitted to the Council on the 18th of that month in connection with the "Austro-German Protocol for the creation of a Customs Union", together with the publication of the League of Nations entitled : The Financial Reconstruction of Austria—General Survey and Principal Documents. Finally, the Secretary-General placed at the Court’s disposal French and English translations of the Protocol of March 19th, 1931, which had been communicated to him by the German delegation to the Sixty-Third Session of the Council.

    In conformity with Article 73, No. 1, paragraph 1, of the Rules of Court, the request was communicated to Members of the League of Nations and to States entitled to appear before the Court. Furthermore, the Registrar, by means of a special and direct communication, informed the Governments of States bound by the Treaty of Saint-Germain-en-Laye of September 10th, 1919, or by Protocol No. I (Declaration) relating to the reconstruction of Austria, signed at Geneva on October 4th, 1922, or by the Austro-German Protocol of March 19th, 19311, which States were regarded by the President of the Court (the latter not being in session) as likely, in accordance with the terms of Article 73, No. 1, paragraph 2, of the Rules, to be able to furnish information on the question submitted to the Court for advisory opinion, that the Court was prepared to receive from them written statements and, if they so desired, to hear oral arguments made on their behalf at a public hearing to be held for the purpose.

    After obtaining the suggestions of the Governments chiefly concerned on the subject of the subsequent procedure in the case, the President of the Court, by an Order made on

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    May 27th, 1931, fixed July 1st, 1931, as the date by which the Governments which had received the above-mentioned special and direct communication were to file their written statements. By that date statements had been filed on behalf of the German, Austrian, French, Italian and Czechoslovak Governments.

    In the course of public sittings held on July 20th, 21st, 22nd, 23rd, 24th, 25th, 27th, 28th, 29th, 31st and August 1st, 2nd, 4th and 5th, 1931, the Court heard the oral arguments of M. Viktor Bruns, on behalf of the German Government, of M. Erich Kaufmann and M. Hans Sperl, on behalf of the Austrian Government, of Me Paul-Boncour and M. Jules Basdevant, on behalf of the French Government, of M. Krcmar and M. Plesinger Bozinov, on behalf of the Czechoslovak Government, arid of M. Massimo Pilotti and M. Vittorio Scialoja, on behalf of the Italian Government, and also the replies given by them to questions put by some members of the Court.

    In addition to the statements and observations of the Governments appearing before the Court and the documents transmitted by the Secretary-General of the League of Nations, as stated above, the Court had before it certain documents and written information sent to it by the representatives of the said Governments.

    The Court, in view of the fact that it included on the Bench judges of the nationality of three only of the five Governments which appeared before it, considered, before the beginning of the public hearings, the question of the application of Article 31 of the Statute and of Article 71 of the Rules of Court in the present case. It decided, on July 17th, 1931, that there was no occasion for it to pronounce upon this question unless officially requested to do so, and it instructed the Registrar to convey this decision to the interested Governments.

    Thereupon, the Agent for the Austrian Government, by a letter dated the same day, officially submitted the said question to the Court, at the same time informing the Court of the name of the person whom the Austrian Government would appoint as judge ad hoc in the event of the Court’s deciding that the said articles were applicable.

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    On July 18th, 1931, the Court decided to communicate the letter of the Agent of the Austrian Government to the Agents of the other interested Governments, informing them that, at the hearing fixed for 20 July and before any argument upon the Case, it would hear any observations which they might desire to make, and would then pass upon the question submitted to it by the Austrian Government. The Court added that if a similar question were raised by another Government, it would pass upon that question at the same time.

    By a letter dated the same day, the Agent for the Czecho-Slovak Government, referring to the fact that the said question had been submitted to the Court, announced the nomination and appointment to the Court, in the event of the admission of judges ad hoc, of a person of Czechoslovak nationality.

    Accordingly, the Court, at the hearing held by it on July 20th, 1931, and before any argument on the merits of the case, heard the observations submitted with regard to the application of Article 31 of the Statute and of Article 71 of the Rules of Court in this case, by M. Kaufmann, on behalf of the Austrian Government, by M. Plesinger Bozinov, on behalf of the Czechoslovak Government, by M. Bruns, on behalf of the German Government, by M. Basdevant, on behalf of the French Government, and by M. Pilotti, on behalf of the Italian Government.

    After deliberation, the Court decided that there was no ground in this case for the appointment of judges ad hoc either by Austria or by Czechoslovakia. When informing the representatives of the interested Governments of this decision at the hearing, the President added that the text of the decision would be communicated to them later. The decision was embodied in an Order made by the Court on July 20th, 1931, the text of which is annexed to the present Advisory Opinion.

    It is in these conditions that the Court is now called upon to give its opinion.

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    Austria, owing to her geographical position in central Europe and by reason of the profound political changes resulting from the late war, is a sensitive point in the European system. Her existence, as determined by the treaties of peace concluded after the war, is an essential feature of the existing political settlement which has laid down in Europe the consequences of the break-up of the Austro-Hungarian Monarchy.

    It was in view of these circumstances that the Treaty of Peace concluded at Saint-Germain on September 10th, 1919, provided as follows :

    "Article 88.

    The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently, Austria undertakes in the absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power."

    It was, more particularly, in view of the same circumstances that, when Austria was given the financial and economic assistance necessary to her independence, the Protocols of October 4th, 1922, were drawn up and signed at Geneva, of which Protocol No. I runs as follows :

    "Protocol No. I.

    [Translation.]
    DECLARATION.

    The Government of His Britannic Majesty, the Government of the French Republic, the Government of His Majesty the King of Italy, and the Government of the Czechoslovak Republic,

    Of the one part,

    At the moment of undertaking to assist Austria in her work of economic and financial reconstruction,

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    Acting solely in the interests of Austria and of the general peace, and in accordance with the obligations which they assumed when they agreed to become Members of the League of Nations,

    Solemnly declare :

    That they will respect the political independence, the territorial integrity and the sovereignty of Austria ;

    That they will not seek to obtain any special or exclusive economic or financial advantage calculated directly or indirectly to compromise that independence ;

    That they will abstain from any act which might be contrary to the spirit of the conventions which will be drawn up in common with a view to effecting the economic and financial reconstruction of Austria, or which might prejudicially affect the guarantees demanded by the Powers for the protection of the interests of the creditors and of the guarantor States ;

    And that, with a view to ensuring the respect of these principles by all nations, they will, should occasion arise, appeal, in accordance with the regulations contained in the Covenant of the League of Nations, either individually or collectively, to the Council of the League, in order that the latter may consider what measures should be taken, and that they will conform to the decisions of the said Council.

    The Government of the Federal Republic of Austria,

    Of the other part,

    Undertakes, in accordance with the terms of Article 88 of the Treaty of Saint-Germain, not to alienate its independence ; it will abstain from any negotiations or from any economic or financial engagement calculated directly or indirectly to compromise this independence.

    This undertaking shall not prevent Austria from maintaining, subject to the provisions of the Treaty of Saint-Germain, her freedom in the matter of. customs tariffs and commercial or financial agreements, and, in general, in all matters relating to her economic régime or her commercial relations, provided always that she shall not violate her economic independence by granting to any State a special régime or exclusive advantages calculated to threaten this independence.

    The present Protocol shall remain open for signature by all the States which desire to adhere to it.

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    In witness whereof the undersigned, duly authorized for this purpose, have signed the present Declaration (Protocol I).

    Done at Geneva in a single copy, which shall be deposited with the Secretariat of the League of Nations and shall be registered by it without delay, on the fourth day of October, one thousand nine hundred and twenty-two.

    Spain and Belgium acceded to this Protocol.

    It will be seen that these provisions, without imposing any absolute veto upon Austria, simply require her to abstain or, in certain circumstances, to obtain the consent of the Council of the League of Nations.

    By a Protocol drawn up at Vienna on March 19th, 1931, Germany and Austria agreed to conclude a treaty with a view to assimilating the tariff and economic policies of the two countries on the basis and principles laid down in that Protocol, thereby resulting in the establishment of a customs union régime.

    There is nothing in this Protocol which provides for any consent by the Council of the League of Nations. In point of fact, however, the Protocol was communicated by the German and Austrian Governments themselves to the British, French and Italian Governments, among others, and the British Government brought the matter before the Council.

    It was in these circumstances that the Council requested the Court to give an advisory opinion on the following question :

    "Would a régime established between Germany and Austria on the basis and within the limits of the principles laid down by the Protocol of March 19th, 1931, the text of which is annexed to the present request, be compatible with Article 88 of the Treaty of Saint-Germain and with Protocol No. I signed at Geneva on October 4th, 1922 ?"

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    Accordingly, the Court has not to consider the conditions under which the Austro-German customs union might receive the Council’s consent. The only question the Court has to settle is whether, from the point of view of law, Austria could, without the consent of the Council, conclude with Germany the customs union contemplated in the Vienna Protocol of March 19th, 1931, without committing an act which would be incompatible with the obligations she has assumed under the provisions quoted above.

    I.—Firstly, as regards the undertakings assumed by Austria in Article 88 of the Treaty of Saint-Germain :

    When—as had previously been provided in Article 80 of the Treaty of Peace concluded with Germany on June 28th, 1919—the Treaty of Saint-Germain laid down that the independence of Austria was inalienable, except with the consent of the Council of the League of Nations, that Treaty imposed upon Austria, who in principle has sovereign control over her own independence, an obligation not to alienate that independence, except with the consent of the Council of the League of Nations.

    If we consider the general observations at the beginning of the present Opinion concerning Austria’s present status, and irrespective of the definition of the independence of States which may be given by legal doctrine or may be adopted in particular instances in the practice of States, the independence of Austria, according to Article 88 of the Treaty of Saint-Germain, must be understood to mean the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters economic, political, financial or other with the result that that independence is violated, as soon as there is any violation thereof, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible.

    If by the régime contemplated by the Austro-German Protocol of 1931 Austria does not alienate her independence, the Council’s consent on this matter is obviously not necessary. In the other event, however, it is essential.

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    By "alienation", as mentioned in Article 88, must be understood any voluntary act by the Austrian State which would cause it to lose its independence or which would modify its independence in that its sovereign will would be subordinated to the will of another Power or particular group of Powers, or would even be replaced by such will.

    Further, since the signatory Powers to the Treaty of Saint-Germain other than Austria have in Article 88 approved this inalienability by Austria of her independence, they are themselves clearly bound not to participate in acts involving alienation.

    Having thus stipulated the inalienability of Austria’s independence otherwise than with the consent of the Council of the League of Nations, Article 88 provides : "Consequently, Austria undertakes in the absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power."

    There is no doubt that the word "consequently" connects the first and second sentences in the article. But, although the undertaking given by Austria in this second sentence to abstain from certain acts, which might directly or indirectly compromise her independence, refers to the observance of the inalienability of her independence laid down in the first sentence, it does not follow that the acts from which Austria has undertaken to abstain are, as a consequence, necessarily acts of alienation proper, that is, acts which would directly cause her to lose her independence or would modify it, as stated above.

    Moreover, the undertaking given by Austria to abstain from "any act which might directly or indirectly or by any means whatever compromise her independence" can only be interpreted to refer to "any act calculated to endanger" that independence, in so far, of course, as can reasonably be foreseen.

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    An act calculated to endanger cannot be assimilated to the danger itself, still less to the consummation of that danger, any more than a threatened loss or risk can be assimilated to a loss or risk which actually materializes.

    In any case, if more is wanted, the "participation in the affairs of another Power" mentioned at the end of Article 88 as an example—which ceased to be of practical application upon Austria’s entry into the League of Nations—of an act which might, pending such entry, compromise her independence, cannot possibly be assimilated to an act of alienation.

    II.—As regards the Protocol signed at Geneva on October 4th, 1922, by Austria, France, Great Britain, Italy and Czechoslovakia, and subsequently acceded to by Belgium and Spain, it cannot be denied that, although it took the form of a declaration, Austria did assume thereby certain undertakings in the economic sphere.

    From the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols, or exchanges of notes.

    That Austria’s undertakings in the 1922 Protocol fall within the scope of the obligations undertaken by her in Article 88 of the Treaty of Saint-Germain appears from the express or implied reference made to that provision in this Protocol.

    Accordingly, the "economic independence" expressly mentioned in the last paragraph of Austria’s undertakings in the 1922 Protocol refers in the economic sphere to "the independence of Austria" within the meaning of Article 88 of the Peace Treaty, so that, as has been shown, a violation of this "economic independence" would be a violation of "the independence of Austria".

    Thus also the grant of a special régime or exclusive advantages calculated to threaten Austria’s independence within the

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    meaning of the last paragraph of the 1922 Protocol would be one of these acts which might compromise Austria’s independence ’within the meaning of Article 88.

    But this in no way prevents the undertakings assumed by Austria in a special and distinct instrument open to the accession of all Powers, whether signatory to the Peace Treaty or not, and to which in fact a Power non-signatory to the Peace Treaty (i.e. Spain) did accede, from possessing their own value and on that account a binding force complete in itself and capable of independent application.

    Thus Spain, who was not a Party to the Peace Treaty and who consequently cannot invoke Article 88, would, on the contrary, be entitled to rely on the 1922 Protocol as the only instrument to which she is a Party, in order to enforce Austria’s express undertakings in that Protocol.

    It has been argued that the first part of the 1922 Protocol containing the declaration by France, Great Britain, Italy and Czechoslovakia and, by accession, Belgium and Spain, is a simple restatement of the undertaking given by States Members of the League of Nations in Article 10 of the Covenant to respect the territorial integrity and political independence of each Member. Similarly, this part has been regarded as a simple reaffirmation of the obligation assumed by the signatory Powers of the Treaty of Saint-Germain not to participate in any acts not compatible with the inalienability of Austria’s independence.

    It was therefore submitted that Austria’s undertakings ought to be regarded merely as the exact counterpart of the undertakings of the other Powers and, accordingly, as a mere repetition of Article 88 of the Peace Treaty.

    As regards the Covenant of the League of Nations, however, while it certainly contains an undertaking to respect the territorial integrity and political independence of each Member and even to preserve as against external aggression this territorial integrity and political independence, it must be observed that it contains neither any undertaking on the

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    part of States not to alienate their own independence, of which they alone are in principle entitled to dispose, nor any undertaking not to seek economic advantages calculated to compromise the independence of another State which is free to dispose of it as it pleases.

    Furthermore, as regards Article 88, it has been shown that even admitting that Austria’s undertakings in the 1922 Protocol are covered by this article, nevertheless they constitute undertakings possessing their own value and consequently are capable of independent application as would be the case if, for instance, Spain sought to enforce them.

    Similarly, no useful comparison can be drawn between other customs unions, numerous examples of which have been and still continue to be furnished by political history, and the customs union contemplated in the Austro-German Protocol.

    In fact, it has not been shown that any of the countries bound by customs unions had undertaken in any way to abstain from any act, negotiations or economic engagement calculated to compromise its economic independence, or to abstain from granting to another Power a special régime or exclusive advantages calculated to threaten that independence.

    In sum, the provisions of the 1922 Protocol create for Austria undertakings obligatory in themselves, special undertakings from the economic standpoint, i.e. undertakings not only not to alienate her independence, but, from the special economic standpoint, undertakings to abstain from any negotiations or from any economic or financial engagement calculated directly or indirectly to compromise that independence and still more precisely and definitely, undertakings not to violate her economic independence by granting to any State a special régime or exclusive advantages calculated to threaten this independence.

    III.—That being so, a consideration of the Austro-German Protocol of March 19th, 1931, the full text of which is annexed hereto, leads to the following results.

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    By the Protocol of Vienna of 1931, the German and Austrian Governments agreed to enter into negotiations for a treaty "to assimilate the tariff and economic policies of their respective countries" (Angleichung der zoll- und handelspolilischen Verhältnisse) on the basis and within the limits of the principles laid down in that Protocol (Preamble).

    While declaring that the independence of the two States and full respect for their international engagements are to be completely maintained (Art. I), both Governments undertook (Art. II) to agree on a tariff law and customs tariff which are to be put into force simultaneously and concordantly in Germany and Austria and the technical execution of which shall be uniform, although each country will enforce its application by means of its own administration (Art. V), the customs receipts being apportioned according to a quota to be fixed (Art. VI, No. 2).

    As between Germany and Austria, export and import duties are in principle to be removed (Art. III). There will be, subject to inevitable exceptions necessary for public health and security, no import, export or transit prohibitions (Art. VII, No. 1). As regards exchange of goods between the two. countries, the turnover tax and commodities forming the subject of monopolies or excise duties will provisionally be regulated by agreement (Art. IV).

    As regards the economic treaty régime, Article IX, while declaring that both Governments retain in principle (grundsätzlich) the right to conclude commercial treaties "on their own behalf", provides on the other hand that the German and Austrian Governments will see that the interests of the other Party are not violated in contravention of the tenor and purpose of the customs union treaty, i.e. the assimilation of the tariff and economic policies of both countries ; the negotiations, Article IX continues, will, as far as possible, be conducted jointly and, notwithstanding that treaties are to be signed and ratified separately, exchanges of ratifications are to be simultaneous (Art. IX, Nos. 2 and 3).

    From the point of view of form, therefore, Austria will certainly possess commercial treaties concluded, signed and ratified by herself. But in reality, and without its being necessary

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    to consider in this connection whether Article IX does or does not imply that there may be limitations other than those set out in Nos. 2 and 3, to the right of concluding "treaties" on her own account, it will suffice to note the provisions for joint negotiations, for regard for the interests of the other Party, and the undertaking to the effect that one Party will not ratify without the other.

    Lastly, the necessary consequence of this new economic treaty régime will be the modification of Austria’s existing treaty régime, which must of course be brought into accord with the projected customs union treaty (Art. X).

    Furthermore, disputes which may arise in connection with the interpretation and application of the customs union treaty are to be submitted for arbitration to a paritative arbitral committee (Art. XI, No. 1 a), whose duty it will also be to bring about a compromise in cases where the treaty provides for a special arrangement or in cases where the treaty makes the realization of the intentions of one Party dependent upon the consent of the other (Art. XI, No. 1 b).

    Lastly, the treaty, which is to be concluded for an unspecified duration, may be denounced after three years ; it may be denounced before the conclusion of this period, should either of the two countries consider that a decision of the arbitral committee infringes its. vital economic interests (Art. XII, and Art. XI, No. 3).

    IV.—It is not and cannot be denied that the régime thus established certainly fulfils "the requirements of a customs union : uniformity of customs law and customs tariff ; unity of the customs frontiers and of the customs territory vis-à-vis third States ; freedom from import and export duties in the exchange of goods between the partner States ; apportionment of the duties collected according to a fixed quota" (Austrian Memorial, p. 4).

    Properly speaking, what has to be considered here is not any particular provision of the Protocol of 1931, but rather the Protocol as a whole or, better still—to use the actual

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    terms of the question put by the Council—"the régime" to be established on the basis of this Protocol.

    It can scarcely be denied that the establishment of this régime does not in itself constitute an act alienating Austria’s independence, for Austria does not thereby cease, within her own frontiers, to be a separate State, with its own government and administration ; and, in view, if not of the reciprocity in law, though perhaps not in fact, implied by the projected treaty, at all events of the possibility of denouncing the treaty, it may be said that legally Austria retains the possibility of exercising her independence.

    It may even be maintained, if regard be had to the terms of Article 88 of the Treaty of Peace, that since Austria’s independence is not strictly speaking endangered, within the meaning of that article, there would not be, from the point of view of law, any inconsistency with that article.

    On the other hand, it is difficult to deny that the projected régime of customs union constitutes a "special régime" and that it affords Germany, in relation to Austria, "advantages" which are withheld from third Powers.

    It is useless to urge that the Austro-German Protocol of 1931 (Art. I, No. 2) provides that negotiations are to be entered into for a similar arrangement with any other country expressing a desire to that effect.

    It is clear that this contingency does not affect the immediate result of the customs union as at present projected between Germany and Austria.

    Finally, if the régime projected by the Austro-German Protocol of Vienna in 1931 be considered as a whole from the economic standpoint adopted by the Geneva Protocol of 1922, it is difficult to maintain that this régime is not calculated to threaten the economic independence of Austria and that it is, consequently, in accord with the undertakings specifically given by Austria in that Protocol with regard to her economic independence.

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    For these reasons,

    The Court,

    by eight votes to seven, is of opinion that :

    A régime established between Germany and Austria, on the basis and within the limits of the principles laid down by the Protocol of March 19th, 1931, would not be compatible with Protocol No. I signed at Geneva on October 4th, 1922.

    Done in English and in French, the French text being authoritative, at the Peace Palace, The Hague, this fifth day of September, one thousand nine hundred and thirty-one, in two copies, one of which is to be placed in the archives of the Court, and the other to be forwarded to the Council of the League of Nations.

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    M. Anzilotti, whilst concurring in the operative portion of the present Opinion, declares that he is unable to agree in regard to the grounds on which it is based, and accordingly has delivered the separate opinion which follows hereafter.

    MM. Adatci and Kellogg, Baron Rolin-Jaequemyns, Sir Cecil Hurst, MM. Schücking, van Eysinga and Wang, declaring that they are unable to concur in the Opinion given by the Court and availing themselves of the right conferred on them by Article 71 of the Rules of Court, have delivered the joint dissenting opinion which follows hereafter.

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