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fringement of the Lausanne agreements "1 regarding the constitution of the Patriarchate and its activities, as well as an infringement of Article 12 of the convention for the exchange of Greek and Turkish populations," and an infringement of the mixed commission's decisions of January 28, 1925, and of the decisions taken by the Council of the League of Nations at Brussels on October 31, 1924.43 On February 23, 1925, His Holiness addressed a letter from Salonika to the Secretary-General of the League of Nations, forwarding a memorandum concerning the Ecumenical Patriarchate and the expulsion of the Patriarch." On March 1, 1925, the Turkish Minister of Foreign Affairs addressed to the Secretary-General of the League of Nations an acknowledgment of the receipt of a copy of the Greek appeal, setting forth the Turkish version of the facts, insisting that the mixed commission was exclusively competent and had finally acted, and that the expulsion was in execution of the decision of the mixed commission. It was contended that the position of the Patriarchate is for Turkey a domestic matter, and that the exchange effected was properly a matter for the mixed commission to deal with. The Turkish Government therefore found itself unable to agree to these questions being laid before the Council of the League of Nations. Furthermore, it found Article 11 of the Covenant inapplicable and asked that the Council of the League of Nations refuse to concede the Greek appeal. On March 16, 1925, the Greek Government submitted to the Council a reply to the letter of the Turkish Minister of Foreign Affairs.

On March 14, 1925, the question was considered by the Council of the League of Nations in the presence of a Greek representative sitting on the Council, but without any representative of Turkey being present. The Council's rapporteur, Viscount Ishii (Japan), proposed that the Council ask the Permanent Court of International Justice for an advisory opinion on the following question:

Is the Council of the League of Nations empowered by the Covenant to discuss the question placed on its agenda at the request of the Greek "Reliance was placed on the proceedings at a session of the Lausanne Conference on January 10, 1923. See British Parliamentary Papers, Turkey No. 1 (1923), Cmd. 1814, p. 327. The Turkish demand for the removal of the Patriarchate from Constantinople had been withdrawn on the understanding that "the Patriarchate was no longer to take any part whatever in affairs of a political or administrative character, and was to confine itself within the limits of purely religious matters."

42 For the text of this convention, see 32 League of Nations Treaty Series, p. 75; British Treaty Series, No. 16 (1923), Cmd. 1929, p. 174.

43 League of Nations Official Journal, November, 1924, pp. 1663–1670.

44 League of Nations Document, C. 129. 1925. VII. See also, A. Rustem Bey, "The Future of the Ecumenical Patriarchate," 3 Foreign Affairs 604; Karl Strupp, "Le Différend Gréco-Turc sur l'Éloignement du Patriarche de Constantinople," Revue de Droit International de Sciences Diplomatiques, Politiques et Sociales, 3d year, p. 11; Ténékidès, “L'Expulsion du Patriarche Ecuménique et le Conflit Gréco-Turc," 7 Revue Générale de Droit International Public (2 ser.), p. 102.

Government as set forth in the said Government's telegram of February 11, 1925, to the Secretary-General of the League of Nations, or is it not so empowered for the reasons given in the Turkish Government's letter of March 13, 1925?

After some discussion in the Council, it was agreed to modify the question to be submitted to the court, and the following text was agreed on:

Do the objections to the competence of the Council raised by the Turkish Government in its letter of March 1, which is communicated to the Court, preclude the Council from being competent in the matter brought before it by the Greek Government by its telegram to the Secretary-General of the League of Nations dated February 11, 1925?

At the time of adopting a resolution embodying the request for an advisory opinion upon this question, the Council expressed a "sincere hope that it would be possible for the question at issue to be settled by private negotiation, perhaps with the good offices of the neutral members of the mixed commission."45 The Council's request was communicated to the court on March 21, 1925. Notice of the request was at once sent to all members of the League of Nations, to the states mentioned in the Annex to the Covenant,46 to other states on the court's list, and to Turkey; and the request figured in the agenda of the court for the ordinary session beginning on June 15, 1925. On June 1, 1925, the Greek Government informed the Council that the private negotiations had proved successful and that the Greek Government desired therefore to withdraw its application of February 11, 1925. The Greek Patriarch had abdicated, and it was for the Holy Synod to proceed to the election of a new patriarch. On June 8, 1925, the Council withdrew the question from its agenda. This made it unnecessary to have an advisory opinion as to the Council's competence; the Council therefore instructed the Secretary-General to inform the court that it was no longer necessary for the Council to ask the court to give the opinion contemplated by the resolution of March 14.47 The court received this notice on June 12, 1925, and the question was at once removed from the list of questions before the court. At the public sitting on June 19, 1925, the President made announcement of this fact.

There can be little question that in this case, although no action was taken by the court, the fact of the court's existence and the fact that its opinion was requested, assisted the Greek and Turkish Governments in reaching a final and satisfactory settlement.

GERMAN INTERESTS IN POLISH UPPER SILESIA

When the boundary between Germany and Poland in Upper Silesia was finally settled, the two governments entered into an elaborate convention at

League of Nations Official Journal, April, 1925, p. 488.

"Except possibly the Hedjaz. See Publications of the Court, Series E, No. 1, p. 261. 47 League of Nations Official Journal, June, 1925, p. 855.

Geneva on May 15, 1922.48 Article 23 of this convention provides (translation):

1. Should differences of opinion respecting the construction and application of Articles 6 to 22 arise between the German and Polish Governments, they shall be submitted to the Permanent Court of International Justice.

2. The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived from the stipulations of the Treaty of Peace of Versailles shall not thereby be prejudiced.

On May 15, 1925, the German Government filed with the Registry of the court an application instituting proceedings concerning certain German interests in Polish Upper Silesia, in conformity with Article 40 of the Statute of the court and Article 35 of the Rules of Court. The German Government stated that the Polish Government had expropriated certain properties of industrial undertakings at Chorzow, and considered that this action constituted a violation of Article 8 of the Geneva Convention, as well as of Articles 92 and 297 of the Treaty of Versailles of June 28, 1919. The German Government also stated that the Polish Government had announced on December 30, 1924, that it had notified its intention of expropriating certain large agricultural properties belonging to twelve proprietors, and it was considered that in ten of the cases the notices thus given constituted violations of various provisions of the Geneva Convention. Accordingly, the German Government requested the court to give judgment that the violations referred to had occurred, and to state what attitude the Polish Government should have adopted in regard to the companies in question. The German case was later slightly modified in the oral proceedings.

The application was communicated to the Polish Government on May 16, 1925, and on June 12 and 18, the Polish Government informed the court that it was compelled to make "certain preliminary objections of procedure and in particular an objection to the Court's jurisdiction to entertain the suit." Dates were set for the filing of documents and the Polish Government filed a case on June 26, submitting that with reference to the German request as to the factory at Chorzow, the court should declare that it had no jurisdiction, or in the alternative that the application could not be entertained until the German-Polish Mixed Arbitral Tribunal had given judgment; and with respect to the agricultural properties, the court should declare that it had no jurisdiction, or in the alternative that the application could not be entertained. The German Government filed a countercase on 48 9 League of Nations Treaty Series, No. 271. The convention came into force upon the exchange of ratifications at Oppeln, on June 3, 1922.

& case.

"The objection filed by Poland was placed on the court's list, and hence Poland submitted Count Rostworowski therefore speaks of Poland as the applicant. Publications of the Court, Series A, No. 6, p. 31. But in the introduction to the judgment, the court names Germany as applicant and Poland as respondent; and the operative part of the judgment declares that Germany's application is admissible.

July 10.

Various additional documents were filed with the court. Count Rostworowski was chosen by Poland to sit as a national judge in the case, and M. Rabel was chosen by Germany to sit in that capacity. Judge Moore was replaced by Deputy-Judge Wang in the consideration of the case. At the public sittings of the court on July 18 and July 20, oral arguments were made by MM. Mrozowski and Limburg, agents for the Polish Government, and by Professor Kaufmann, agent for the German Government.

The court handed down its judgment on August 25, 1925.50 The two parties had agreed that Article 23 of the Geneva Convention falls within the category of "matters specially provided for in treaties and conventions in force," mentioned in Article 36 of the court Statute. The Polish Government did not question Germany's compliance with Articles 35 and 40 of the court Statute.51 The court decided to consider separately the Polish submissions regarding the factory at Chorzow and its submissions regarding the agricultural estates.

As to that part of the case relating to the factory at Chorzow, the Polish Government first made a plea to the jurisdiction of the court, contending (a) that the existence of a difference of opinion within Article 23 of the Geneva Convention had not been established; (b) that the dispute was not one of those contemplated under Article 23; and (c) that the German Government had in effect asked for an advisory opinion which could not be given at the request of a single state. In dealing with this plea to the jurisdiction, the court first called attention to the special character of Article 23 which fails to provide that diplomatic negotiations must first be tried. Hence under Article 23, recourse may be had to the court as soon as one of the parties considers that a difference of opinion exists. Such a difference is shown to exist when one government points out that the attitude adopted by the other conflicts with its own. It was urged that this difference of opinion must relate both to the construction and application of the articles in question. The court thought that this provision in both ordinary and legal language might mean construction or application. Poland then contended that the difference did not fall within Article 23 because it did not relate to Articles 6 to 22 of the Geneva Convention, but solely to the interpretation of a Polish law of 1920. Poland's objection had been made prior to any proceedings with

50 Publications of the Court, Series A, No. 6.

" At the time Germany was not a member of the League of Nations and not a party to the protocol of the court. She did not file with the court the declaration mentioned in the Council's resolution of May 17, 1922, but the court decided that this was not necessary. See Publications of the Court, Series E, No. 1, p. 261. Article 35 of the court statute provides that "when a State which is not a Member of the League of Nations is a party to a dispute [submitted to the court], the Court will fix the amount which that party is to contribute towards the expenses of the Court." It is notable that with reference to the Wimbledon Case, decided on August 17, 1923, the court decided on September 13, 1923, not to demand any contribution from Germany. See Publications of the Court, Series E, No. 1, p. 256.

reference to the merits, and the court could not in any way prejudge its decision on the merits; but the court felt bound to dispose of the objection even if it should have to touch on subjects belonging to the merits, with the caveat that its freedom be maintained. It was concluded that the differences did fall within Article 23, and that the court's jurisdiction was not affected by the fact that the validity of rights involved was disputed on the basis of texts other than the Geneva Convention.

The Polish Government submitted as an alternative that the German application with reference to the factory at Chorzow could not be entertained until the German-Polish Mixed Arbitral Tribunal in Paris had given judgment with reference to a claim submitted to that tribunal on November 10, 1922, by the Oberschlesische Stickstoffwerke Company. It was important to say whether the Polish submission was a defense of fin de non-recevoir, or a plea of litispendence. The court thought it was not the latter, and it was considered a much disputed question whether the doctrine of litispendence could be invoked in international relations in the sense that it is applied by national courts; but as a plea of litispendence, the plea would fail because the actions were not identical and the courts were not coördinate. Nor could the fin de non-recevoir be maintained on the ground that the German Government was seeking an advisory opinion, for the German Government had asked for a decision and the interrogative form of this request did not take its submission outside the scope of Article 23.

With reference to the large agricultural estates, Poland's plea to the jurisdiction also failed. Her own contentions showed that a dispute had arisen whether the Polish Government had given notice in accordance with the terms of the convention or had actually expropriated. There was an undeniable difference of opinion, falling under Article 23 of the convention, and the court, therefore, has jurisdiction. Likewise, the Polish argument as to the inadmissibility of the application with respect to large agricultural estates failed. It was only contended that six of the ten proprietors to whom notice was alleged to have been given had had recourse to the GermanPolish Mixed Arbitral Tribunal, so that as to the other alleged expropriations, the Polish Government itself seems to have admitted that a difference existed with respect to which the court would certainly have jurisdiction.

The court decided, therefore, that both with reference to the application relating to the factory at Chorzow, and with reference to the application relating to agricultural estates, the Polish plea should be dismissed, and the German application should be declared admissible and reserved for judgment on the merits. The President was instructed to fix the times for the deposit of further documents of the written proceedings. The opinion was unanimous, except for the dissent of Count Rostworowski, who filed a separate opinion. Judge Anzilotti also filed certain additional observations in which he disagreed with a statement in the judgment to the effect that the differences of opinion contemplated by Article 23 might include differences of

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