Makes the following Order :
Having regard to Articles 41 and 48 of the Statute,
Having regard to Article 57 of the Rules of Court,
Whereas by an Application of July 1st, 1933, filed with the Registrar of the Court on July 3rd, the German Government, availing itself, in its capacity as a Member of the Council of the League of Nations, of the right conferred upon it by Article 12 of the Treaty between the Principal Allied and Associated Powers and Poland, signed at Versailles on June 28th, 1919, brought before the Permanent Court of International Justice a suit against the Polish Government
Whereas, in the said Application, the subject of the dispute is described in the following terms :
"The German Government holds that the Polish Government has acted inconsistently with the obligations assumed by it under Articles 7 and 8 of the Treaty of June 28th, 1919, by discriminating against Polish nationals of German race of the voivodeships of Posnania and Pomerelia, in the carrying out of its agrarian reform, particularly in the application of its agrarian reform law of December 28th, 1925, as also in the application of the decree of the German Bundesrat of March 15th, 1918, concerning authorization of the transfer of estates, and of the Prussian decree of December 23rd, 1918, regarding the State’s right of pre-emption as confirmed and amended by the decree of the Commissariat of the Supreme Council of the Polish nation of June 25th, 1919, by the decrees of December 29th, 1919, and of June 18th, 1920, and by the law of June 23rd, 1921.
The German Government also considers that Poland has not fulfilled the obligations incumbent upon it in this respect under Article 1 of the Treaty of June 28th, 1919."
Whereas, in the Application, the "claim" is formulated as follows :
"The German Government requests the Permanent Court of International Justice to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race and to order reparation to be made";
Whereas, by letter of May 26th, 1933, the German Government, in announcing that it would shortly file its Application, had informed the Court that it had appointed its Agent in the case ;
Whereas, on July 3rd, 1933, the Agent of the German Government filed with the Registrar of the Court, together with the aforementioned Application instituting proceedings, a request dated July 1st "for the indication of interim measures of protection pursuant to Article 41 of the Statute and Article 57 of the Rules of Court" ;
Whereas, in this request, "the German Government requests the Court to indicate interim measures of protection in order to preserve the status quo until the Court has delivered final judgment in the suit submitted by the Application" ;
Whereas, upon receipt of this request, the Vice-President, as Acting-President of the Court—the latter not being in session—on July 3rd, 1933, pursuant to Article 23 of the Statute and Article 57 of the Rules of Court,
Whereas, on July 4th, 1933, the Polish Government informed the Court that it intended to present observations in accordance with Article 57 of the Rules of Court, but asked for a postponement of the hearing arranged for July 11th until the end of the month ;
Whereas, on July 5th, 1933, the Agent of the German Government informed the Court that that Government desired to present observations, in accordance with Article 57, paragraph 3, of the Rules ;
Whereas the postponement sought by the Polish Government was not granted ; and as the Polish Government stated, by letter of July 9th, 1933, delivered to the Registrar on the 10th of that month, that, notwithstanding the intention it had previously expressed, it was unable to present its observations at the hearing of the Court fixed for July 11th ;
Whereas, in these circumstances, the Court, at the hearing on July 11th, merely adjourned until July 19th the hearings on the request of the German Government for the indication of interim measures of protection ;
Whereas, on July 12th, 1933, the Polish Government informed the Court that it had appointed a representative to present its observations on the request of the German Government ;
Whereas, at the hearings of July 19th, 20th and 21st, 1933, the Court heard the observations and reply of M. Viktor Bruns, Agent of the German Government, and the observations and rejoinder of M. Th. Sobolewski, representing the Polish Government ;
Whereas, at these hearings, the Agent of the German Government filed the documents enumerated in the Annex ;
Whereas, under Article 41 of the Court’s Statute, "the Court shall have power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either Party" ;
Whereas, according to this provision, the essential condition which must necessarily be fulfilled in order to justify a request for the indication of interim measures, should circumstances require them, is that such measures should have the effect of protecting the rights forming the subject of the dispute submitted to the Court ;
Whereas, according to the terms of the Application instituting proceedings which have been quoted above, the subject of the dispute is the contention of the German Government
Whereas, on the basis of this contention, which is not admitted by the Polish Government, the German Government has requested the Court to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race and to order reparation to be made ;
Whereas, in accordance with the verbal explanation given by the Agent for the German Government at the hearing on July 19th, 1933, the German Government, by the request for interim measures, asks the Court to indicate to the Polish Government that it should not include other members of the German minority in the nominal lists for expropriation, that it should not proceed with the expropriation of the estates of members of the German minority included in nominal lists already published and that it should not transfer to other persons estates taken from members of the German minority, or establish settlers upon such estates ;
Whereas, whilst the suit brought by the German Government is presented as having for its object to obtain a declaration confirming that, as alleged by it, infractions have been committed in certain individual cases where the measures in question have already been applied, and, if necessary, reparation in respect of such infractions, the request for interim measures covers all future cases of the application of the Polish agrarian reform law to the Polish nationals of German race and aims at securing an immediate indication to the effect that henceforth, and until judgment has been pronounced, the said Polish law shall not be applied in respect of the said nationals ;
Whereas, accordingly, the interim measures asked for would result in a general suspension of the agrarian reform in so far as concerns Polish nationals of German race, and cannot therefore be regarded as solely designed to protect the subject of the dispute and the actual object of the principal claim, as submitted to the Court by the Application instituting proceedings ;
Whereas, in these circumstances, the Court, without having to consider the scope of Article 12 of the above-mentioned Treaty of June 28th, 1919, as regards the indication of interim measures of protection, and irrespective of the question whether it may be expedient for the Court in other cases to exercise
Dismisses the request of the German Government for the indication of interim measures of protection.
Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this tw’enty-ninth day of July, one thousand nine hundred and thirty-three, in three copies, one of which shall be placed in the archives of the Court and the others transmitted to the German and Polish Governments respectively.
Baron Rolin-Jaequemyns, M. Schücking, and Jonkheer van Eysinga, Judges, declare that they are unable to agree with the Order, and append thereto the statements of their dissenting opinions which follow.
M. Anzilotti, Judge, declares that he disagrees with the Order to the extent which he has himself set forth in his dissenting opinion, in the following terms.