tutorial video tutorial video Discover the CiteMap in 3 minutes
Source(s) of the information:
Source(s) of the information:

Lawyers, other representatives, expert(s), tribunal’s secretary

Separate Opinion of M. Hammarskjold

I.

85
[Translation.]
Being unable, much to my regret, to concur in the judgment of the Court, I feel obliged very briefly to state my own opinion in regard to the case decided by this judgment.

The first question arising is whether the appeal can be entertained. As it has not been contended that the appeal was out of time (Art. X, para. 2, of Agreement II), the point to be decided is whether the two conditions laid down in Article X, paragraph 1, of Agreement II have been fulfilled.

The most important of these conditions is that the judgments impeached must have been rendered in "proceedings other than those referred to in Article I" of Agreement II, in order to enable the Court to entertain an "appeal" from them. The answer to the question whether this condition is fulfilled depends, in my view, upon the results of a comparison between, on the one hand, the external characteristics of the proceedings culminating in the judgments impeached, as these characteristics emerge from the applications instituting proceedings, and, on the other hand, the procedural requirements resulting from Article I, which, for the purposes of defining the "proceedings" referred to in that Article, must be read in conjunction more especially with Articles VII and VIII. For the reasons, i. a., which are set forth in M. Anzilotti’s separate opinion, I hold that the answer to this question must be in the affirmative. I have one observation only to add to these reasons : under Article I, paragraph 2, sub-paragraph 2, of Agreement II, "any proceedings.... instituted.... as a result of the application of the new Yugoslav law"—this is true of the three cases referred to the Court—"can only be instituted against the Agrarian Fund....". In fact the three suits culminating in the judgments forming the subject of the appeal to the Court were brought against Yugoslavia. In my view, the provision in Article III to the effect that "the claims introducing legal proceedings against.... Yugoslavia, referred to in Article I, shall be treated henceforth as having been made against the Agrarian Fund" is not even applicable to the proceedings referred to in Article I, paragraph 2, sub-paragraph 2.

I am also led to an affirmative conclusion as regards the fulfilment of the condition that the judgments impeached before the Court must be "judgments on questions of jurisdiction or

86
merits". For my reasons for so doing, I would refer to what Mr. Hudson says in the first part of his separate opinion.

It follows that in my opinion the appeal should be entertained. It therefore becomes necessary to consider whether the judgments are sound.

In my view, the applications lodged with the Mixed Arbitral Tribunal raised two questions on the merits :

(1) whether, after the coming into force of the Paris Agreements, it was still open to the claimants to make application to the Mixed Arbitral Tribunal for national treatment under Article 250 of the Treaty of Trianon ;

(2) and, if so, whether the conditions laid down by that Article were fulfilled in the particular cases.

The Yugoslav Government lodged three objections to these applications before the Mixed Arbitral Tribunal : that they could not be entertained ; that they were out of time ; and that the Tribunal had no jurisdiction. The judgments impeached actually dealt with the first of these objections only. They were however based on reasoning which bore so directly upon the first question on the merits stated above, that the soundness of the judgments "depends entirely on whether the conclusion reached by the Mixed Arbitral Tribunal on this question is well-founded; that conclusion is that "the arrangement worked out" in Agreement II "is only effective if it covers all proceedings brought or which may be brought by Hungarian nationals against.... Yugoslavia in regard to the agrarian reform. Article I of the Agreement covers them all and none of these suits may henceforth be based on Article 250 of the Treaty of Trianon...."

It is impossible for me to agree with this view because, for the reasons already given by M. Anzilotti in his separate opinion and by Mr. Hudson in part II of the separate opinion which he has appended to the judgment, I hold that the expression "proceedings.... in regard to the agrarian reforms...." used in Article I does not bear a purely literal meaning, but a special and limited meaning which is sufficiently defined by the preamble of Agreement II. This special meaning implies that there are eases which, though "in regard to the agrarian reform", are not covered by Article I of Agreement II. In my opinion, the three cases before the Court are among those to which the Paris Agreements are inapplicable. They are "proceedings.... instituted.... as a result of (à la suite de) the application of the new Yugoslav law". Such proceedings are dealt with in Article I, paragraph 2, sub-paragraph 2, of Agreement II. But that provision, in my opinion, only relates to suits which arise from an expropriation decree issued under the definitive law and which are directed to obtaining the compensation contemplated by the Agreements in respect of areas to which an

87
"effective" measure of agrarian reform is applied for the first time as a result of this decree. And the three cases in question obviously do not fulfil the two latter conditions.

My conclusion therefore is that the judgments impeached are ill-founded and should be reviewed.

The Yugoslav Government has submitted that in the event of a decision to this effect, the cases should be referred back to the Mixed Arbitral Tribunal in order that the latter may adjudicate upon the objections that the claims are out of time and that it has no jurisdiction. I do not consider this submission to be well-founded. In my view, the Mixed Arbitral Tribunal, in rendering its decision and in reasoning as it did in so doing, must be held to have accepted jurisdiction and to have recognized as a foregone conclusion that the applications instituting proceedings were not out of time.

But I hold that the second question on the merits raised by these applications—namely the question of the application as distinct from the applicability of Article 250 of the Treaty of Trianon—does not, in view of the circumstances of the case, arise before the Court adjudicating "on appeal". This question should therefore be referred back to the Mixed Arbitral Tribunal for decision.

Since, in my view, the appeal should be entertained, there would be no occasion to adjudicate upon the alternative request for the interpretation and application of Agreements II and III of Paris submitted by Hungary. Accordingly, my "separate opinion" might terminate at this point.

II.

I desire however to add that the vote which I have felt bound to record against the judgment of the Court applies not only to the rejection of the appeal, but also to the decision to the effect that "the attitude of Yugoslavia towards Hungarian nationals affected by the agrarian reform measures in Yugoslavia has been consistent with the provisions of the Agreements of Paris" and to the reasons on which that decision is based. As my dissent, however, is only partial in this regard, I feel that I should briefly explain my view.

If one takes the standpoint, as adopted by the Court, that the appeal cannot be entertained, the next questions which present themselves are the admissibility of the request for the interpretation and application of the Agreements, and the definition of the "attitude" of Yugoslavia, which is referred to in that request. In regard to these points, I find myself in agreement with the judgment, and I do not think it necessary to

88
consider whether the "attitude" in question corresponded—and, if so, to what extent—to a refusal to pay the local indemnities.

At this point, I find it necessary to draw a very clear distinction between, on the one hand, the three petitioners in the proceedings forming the subject of the main submission to the Court (with such other Hungarian nationals as may be similarly situated, and may have filed applications after April 28th, 1930) and, on the other hand, the Hungarian nationals "who have never had any intention of claiming more than national treatment".

In regard to the former category, it follows, by hypothesis— seeing that the appeal has been rejected—that their cases come under Article I of Agreement II of Paris. In my view that by no means implies that the same arguments which have been used as grounds for the rejection of the appeal can be employed as they stand in regard to the request for interpretation and application : for, a decision of the Court delivered "on appeal" is of an entirely different legal character from a decision delivered on a request for interpretation ; the former has the force of res judicata in regard to the parties, and perhaps also in regard to the Mixed Arbitral Tribunal, while the second is only of a declaratory character ; moreover, the appeal related to judgments delivered by the Mixed Arbitral Tribunal, whereas the request for interpretation relates to the attitude of Yugoslavia ; lastly, the applications which led to the judgments under appeal were based on Article 250 of the Treaty of Trianon, whereas the "attitude" of the Yugoslav Government, which is the subject of the request for interpretation, is alleged to be based on the Paris Agreements. But it follows, no doubt, from the fact that the cases of the three petitioners (and the other similar cases) fall by hypothesis under Article I of Agreement II, that the whole of the Agreements, including Article 10 of Agreement III, are also applicable to them. That Article provides that the capital of the Agrarian Fund shall be reduced to a certain extent in respect of the lands belonging to owners who were "actually claimants" on April 28th, 1930, "in regard to whom the Mixed Arbitral Tribunal decides that it has no jurisdiction or whose claim it dismisses"; and this reduction finds its counterpart in "a reduction in the annuity to be paid by Yugoslavia". But the same rule does not apply in regard to lands belonging to Hungarian nationals who—like the petitioners in the three suits—did not become claimants until after the above-mentioned date. It follows that the local indemnities of claimants belonging to the latter category fall inevitably—if the hypothesis in question is accepted—within the scope of the lump-sum settlement referred to in Article 10 of Agreement III.

89
So far as concerns these claimants, the "attitude" of the Yugoslav Government would therefore appear to be in conformity with the Paris Agreements.

The position is different in regard to the Hungarian nationals, owners of large estates in Yugoslavia, who have been expropriated under the agrarian reform but have never instituted any legal proceedings before the Mixed Arbitral Tribunal ; for their cases cannot be considered as being covered by the Paris Agreements, unless it is assumed that the effect of those Agreements was to compel all Hungarian nationals either to institute proceedings before the Mixed Arbitral Tribunal, or to abandon their title to any indemnity at all ; and, for the reasons, among others, given in M. Anzilotti’s separate opinion, I feel it is impossible to accept such an assumption.

Moreover, even if it were admitted that these cases, as such, came under the Paris Agreements, claims for local indemnities would not, for the reasons I have already given, be covered by the only clause in Article I of Agreement II which might possibly be thought applicable, viz. : sub-paragraph 2 of paragraph 2 of that Article. Neither would, therefore, the provisions of Agreement III be applicable to them. If one adopts the latter standpoint, it is, accordingly, manifest that the "attitude" of the Yugoslav Government towards the Hungarian nationals in question was not consistent with the Paris Agreements.

If, however, one takes the view that the cases of these Hungarian nationals are not covered by the Agreements, one also arrives at the same conclusion. For, the Agreements constitute a derogation from the rule prescribed in Article 250 of the Treaty of Trianon, which, in its turn, in derogating from the exceptional rule laid down in Article 232 of the same Treaty, reverts to the ordinary law. But a derogation from the ordinary law cannot be presumed ; it has to be explicitly laid down in the texts. It would therefore be impossible to use the silence of the texts as a ground for justifying an action which, beyond doubt, constitutes such a derogation. It follows that, since the cases in question were not expressly provided for in the Agreements, it is impossible to find in the latter any ground for refusing treatment in accordance with the régime of ordinary law to the parties concerned. A "refusal" based on such grounds, and producing such effects, would not therefore be consistent with the Paris Agreements.

Whole document
page.
Click on the text to select an element Click elsewhere to unselect an element
Select a key word :
1 /