The PCIJ's opinion in jurisdiction of the courts of danzig. Individual rights under treaties

Journal of the History of International Law

Volumn 10, Issue 1, 2008, Pages 119-145

  Parlett, Kate ^a  

^a JESUS COLLEGE   (United Kingdom)

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EID: 70049099741     PISSN: 1388199X     EISSN: 15718050     Source Type: Journal    
DOI: 10.1163/157180508X320163     Document Type: Review

References (104)

1. Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Offi cials who have passed into the Polish Service, Against the Polish Railways Administration), PCIJ Reports, Series B, No. 15, 3 March 1928, 3 at pp. 17-18 (hereinafter "PCIJ opinion"). In addition to the opinion under discussion in this paper, fi ve advisory opinions were rendered by the PCIJ in respect of Danzig between 1925 and 1935
2. Polish Postal Service in Danzig, PCIJ Reports, Series B, No. 11, 16 May 1925, 4;
3. Free City of Danzig and International Labour Organization, PCIJ Reports, Series B, No. 18, 26 August 1934, 2;
4. Access to, or Anchorage In, the Port of Dantzig, of Polish War Vessels, PCIJ Reports, Series A/B, No. 43, 11 December 1931, 127;
5. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, PCIJ Reports, Series A/B, No. 44, 4 February 1932, 3;
6. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, PCIJ Reports, Series A/B, No. 65, 4 December 1935, 39.
7. For examples see Robert McCorquodale, "The Individual and the International Legal System" in Malcolm Evans (ed), International Law, 2nd edn. (Oxford: OUP, 2006), 307 at p. 312;
8. Carlos Manuel Vázquez, "Treaty Based Rights and Remedies of Individuals", (1992) 92 Colum. L. Rev 1083 at p. 1087;
9. P.K. Menon, "The International Personality of Individuals in International Law: A Broadening of the Traditional Doctrine" (1992) Journal of Transnational Law and Policy 151 at pp. 163-164;
10. Hersch Lauterpacht, "The Subjects of the Law of Nations [Part I]" (1947) 63 LQR 460 at p. 456;
11. Hersch Lauterpacht, "The Subjects of the Law of Nations [Part II]" (1948) 64 LQR 97 at pp. 97-99 (who states that the Opinion "dealt a resounding blow to the dogma of the impenetrable barrier separating individuals from international law" (at p. 98))
12. See also The Republic of Ecuador v. Occidental Exploration and Production Company, Court of Appeal (Civil Division), Judgment of 9 September 2005, A3/2005/1121.
13. Hersch Lauterpacht, The Development of International Law by the Permanent Court of International Justice (London: Longmans, 1934) at pp. 50-52.
14. Lauterpacht, "The Subjects of the Law of Nations [Part II]", supra, at p. 98.
15. Dionisio Anzilotti, Cours de droit International (Paris: Librairie de Recueil Sirey, 1929), pp. 407-408.
16. see also pp. 133-134.(1992) 123.
17. It has been suggested that the Court's dualist approach was due to Anzilotti's influence: see discussion in José María Ruda, "The Opinions of Judge Dionisio Anzilotti at the Permanent Court of International Justice", 3 EJIL (1992) 100 at p. 102.
18. Discussion of Anzilotti in the context of Italy's international law tradition can be found in Angelo Piero Sereni, The Italian Conception of International Law (New York: Columbia University Press, 1943), esp at pp. 213-244.
19. W E Beckett, "Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application" (1930) 11 BYBIL 1 at 4.
20. W E Beckett, "Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application" (1930) 11 BYBIL 1 at 4.
21. This position was also stated by Manley O. Hudson in his discussion of the Court's opinion: "In general, it may be said that an international engagement entered into by two States creates rights and obligations for those States only, and it does not of its own force confer rights or impose obligations on individuals, though this may be the consequence of its incorporation into the municipal law of a State which is a party." Manley O. Hudson, The Permanent Court of International Justice: A Treatise (New York: Macmillan, 1934), at pp. 530-531.
22. The Hanseatic League was in existence from 1158 until 1862, although its final formal meeting was held in 1669.
23. The history is helpfully digested by Bleimaier: JK Bleimaier, "The Legal Status of the Free City of Danzig 1920-1939: Lessons to be Derived from the Experiences of a Non-State Entity in the International Community", 2 (1989) Hague Yearbook of International Law 69, whose work had benefited from personal discussions with the final two High Commissioners of the League of Nations in the Free City. For discussion of the sui generis position of the Free City
24. see Malcolm M. Lewis, "The Free City of Danzig", (1924) 5 BYBIL 88
25. Ian F. D. Morrow, "The International Status of the Free City of Danzig", (1937) 18 BYBIL 114.
26. Woodrow Wilson, "Speech on the Fourteen Points", Congressional Record, 65th Congress 2nd Session, 1918, pp. 680-681.
27. Bleimaier, supra. These arrangements were distinctive. Although there had been previous examples of "internationalized territories", such as the Memel Territory (1924-1939), the Saar Territory (1920-1935, 1945-1957), the International City of Tangier and the International Settlement of Shanghai (1845-1944) (and there have been since: a United Nations administration was established in Kosovo with "assurances" respecting the territorial integrity of Yugoslavia), the cases have each varied in character and extent. Here it is significant that Danzig was not ceded to Poland, in whose interests it was created, but it was put under a special regime, to be administered by the League of Nations.
28. Treaty of Versailles, 28 June 1919, UKTS 4 (Cmd. 153), Article 100.
29. Ibid., Article 103.
30. Ibid., Article 102.
31. Ibid., Article 103.
32. Decision of the Conference of Ambassadors of the British Empire, France, Italy and Japan (the Principal Allied and Associated Powers) at Paris constituting Danzig a Free City, Paris, 27 October 1920, 113 BFSP (1920), p. 875.
33. See also James Crawford, The Creation of States in International Law, 2nd edn (Oxford: OUP, 2006), at p. 236 ff.
34. The text of the decision is reproduced in Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at pp. 471-475 (decision of 15 August 1921)
35. League of Nations - Official Journal, Volume 2, Number 9, November 1921, pp. 970-974.
36. The Polish submissions on the appeal of the decision of the High Commissioner of 8 April 1927 indicate that the High Commissioner was approached because the Polish Government and the Senate of the Free City could not reach agreement: see Reply of the Polish Government to the Appeal by the Senate of the Free City of Danzig against the Decision of the League of Nations High Commissioner at Danzig, Dated April 8th, 1927, with regard to the Jurisdiction of Danzig Courts in Actions brought by Railway Officials against the Polish Railways Administration, PCIJ Reports, Series C, No. 14-I (1928), p. 125 at p. 125.
37. League of Nations - Official Journal, Volume 2, Number 9, November 1921, pp. 970-974, esp. at p. 973.
38. League of Nations - Official Journal, Volume 2, Number 9, November 1921, p. 971 records the appeal lodged by the Free City, although notes that it was later withdrawn.
39. This is inferred from the paragraph preceding the decision (by way of explanation) as it is reproduced in the Official Journal, which notes that the High Commissioner had been involved in bilateral negotiations relating to the dispute, and from the first paragraph of the High Commissioner's decision, reproduced immediately below. However, any correspondence between the two Governments is not reproduced in the Official Journal and so the exact sequence of events is unclear.
40. See League of Nations - Official Journal, Volume 2, Number 9, November 1921, p. 974, at p. 974.
41. League of Nations - Official Journal, Volume 2, Number 9, November 1921, p. 974, at p. 976.
42. The two Governments signed an agreement giving mutual undertakings not to appeal the decisions of the High Commissioner with regard to the Danzig Railways: Polish-Danzig Agreement of September 23rd, 1921, translation of copy received from Polish delegation reproduced in League of Nations - Official Journal, Volume 2, Number 9, November 1921, p. 978.
43. Final Agreement reproduced in Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at pp. 152-157.
44. The Polish Reply to the Danzig Appeal indicates that this occurred: see Polish Reply to the Danzig Appeal, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at p. 140.
45. Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at p. 140. The text of the Declarations, reproduced in PCIJ opinion at p. 22, was as follows: "Declaration*- I declare that I am prepared to remain, as from April 1st, 1922, in the Polish railway service in the territory of the Free City of Danzig under the conditions laid down in the Agreement concluded between the Danzig and the Polish Governments on October 22nd, 1921. [Signature] *Further additions and conditions render this declaration null and void." Danzig later stated that over one thousand such declarations were made: see Observations of the Danzig Senate Regarding the Polish Reply, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p.144 at p. 145.
46. PCIJ opinion at pp. 26-7.
47. This point was also made by Danzig in Observations of the Danzig Senate Regarding the Polish Reply, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p. 144 at p. 144.
48. The Constitution of Poland of 17 March 1921 is reproduced in 120 BFSP 854
49. the Law modifying and supplementing the Constitution of Poland of 2 August 1926 is reproduced in 125 BFSP 969.
50. Polish Reply to the Danzig Appeal, reproduced in Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p. 124 at pp. 127-128.
51. PCIJ opinion at p. 10.
52. Menge v. the Polish Treasury, High Court of Danzig, Decision of 21 November 1925, reported in Annual Digest of Public International Law Cases, (1925-6), Case No. 258, p. 340 at p. 341.
53. Ferdinand Flander v. the Polish Republic, Decision of 1 May 1926, reproduced in Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p. 255 (in German).
54. August Holz v. the Polish Republic, Decision of 5 December 1927, reproduced in Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. (1928), p. 452 (in German).
55. Extracted in PCIJ opinion at pp. 10-11.
56. Decision of the High Commissioner regarding the jurisdiction of Danzig Courts in actions brought by railway officials against the Railway Administration (on April 8th, 1927), English translation reproduced in Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have passed into the Polish Service, Against the Polish Railways Administration), PCIJ Reports, Series B, No.15, 3 March 1928, Annex I, p. 28 at p. 29.
57. Ibid., at p. 29.
58. Ibid., at p. 30.
59. See Oral Argument of Mr Limburg, at the Public Sessions of 7 and 8 February, 1928, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p. 49 at p. 63.
60. Decision of the High Commissioner regarding the jurisdiction of Danzig Courts in actions brought by railway officials against the Railway Administration (on April 8th, 1927), English translation reproduced in Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have passed into the Polish Service, Against the Polish Railways Administration), PCIJ Reports, Series B, No. 15, 3 March 1928, Annex I, p. 28, at p. 31.
61. Ibid., at p. 32.
62. Ibid., at p. 34.
63. Ibid., at p. 35.
64. Ibid., at p. 36.
65. The appeal was made on the basis of Article 39 of the Treaty of Paris: PCIJ opinion at p. 12.
66. PCIJ opinion at pp. 12-13.
67. The Court later noted that the terms of the statement of appeal necessarily implied the existence of the jurisdiction of the Danzig courts with respect to other claims (ie not based on the 1921 Agreement), when it stated "even when these claims are based on the [1921 Agreement]": PCIJ opinion at p. 16.
68. Ibid., at p. 16.
69. Ibid., at p. 16.
70. Ibid., at p. 23.
71. PCIJ opinion at p. 17.
72. The formulation "series of provisions which establish the legal relationship between the Railway Administration and its employees" comes directly from the decision of the High Commissioner of 8 April 1927: English translation reproduced in Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have passed into the Polish Service, Against the Polish Railways Administration), PCIJ Reports, Series B, No. 15, 3 March 1928, Annex I, p. 28 at p. 31
73. Reply of the Polish Government to the Appeal by the Senate of the Free City of Danzig, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at p. 137. In its submissions, Poland suggested that a claim based on the 1921 Agreement would require legislation in both Poland and the Free City, in order to give the courts "jurisdiction".
74. Ibid., at pp. 132-135.
75. Appeal by the Government of the Free City of Danzig, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at p. 115.
76. PCIJ opinion at pp. 17-18.
77. The Court supported its conclusion about this by reference to Article 4 of the 1921 Agreement. Article 4(2) provided that Danzig officials are subject to the disciplinary laws of Poland. Article 4(5) gave Poland the right to frame its disciplinary laws different from the provisions of the 1921 Agreement, but required that in those circumstances the provisions of the 1921 Agreement had to be amended to make it consistent with Polish law. The Court stated that this necessity of amending the 1921 Agreement shows that (1) Polish law, insofar as it differs from the 1921 Agreement, did not "de plano regulate the legal relations between the [PRA] and the Danzig officials", and (2) that the 1921 Agreement "constitutes a legal document governing the relations between the [PRA] and the Danzig officials." Ibid., at pp. 18-19.
78. Ibid., at pp. 18-19.
79. Ibid., at p. 19.
80. The argument is found in Reply of the Polish Government to the Appeal by the Senate of the Free City of Danzig, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928) at p. 142.
81. PCIJ opinion at pp. 19-20.
82. PCIJ opinion at pp. 23.
83. Ibid., at p. 23.
84. PCIJ opinion at pp. 23.
85. Ibid., at p. 5. This issue had not been addressed by the High Commissioner because he had concluded that the Danzig courts did not have jurisdiction in these cases.
86. PCIJ opinion at pp. 23.
87. Ibid., at p. 25. The Court noted the decision of the High Commissioner of 5 September 1921 on this point, stating: "This Decision, which is couched in quite comprehensive terms, constitutes, in the opinion of the Court, the legal basis of the jurisdiction of the Danzig Courts to entertain actions brought by Danzig railway officials against the [PRA]. Judgments which are given within the limits of jurisdiction thus determined and which are not in conflict with other rules of law internationally binding upon Danzig in her relations with Poland are lawful, and must be recognized by the latter."
88. PCIJ opinion at pp. 23.
89. Ibid., at p. 26.
90. PCIJ opinion at pp. 23.
91. Ibid., at pp. 26-27.
92. Danzig had raised this issue in its observations, submitting that Poland had "made itself guilty of an omission, and to plead this omission in dealing with cases brought by officials would, according to generally recognized legal principles, be fraudulent and therefore inadmissible": Observations of the Danzig Senate Regarding the Polish Reply, Jurisdiction of the Courts of Danzig (Actions by Certain Railway Officials Against the Polish Administration), PCIJ Reports, Series C, No. 14-I (1928), p. 144 at pp. 144-145.
93. The PCIJ had previously stated in the Exchange of Greek and Turkish Populations case that it was self-evident that a state which had assumed valid international obligations was bound to make modifications in its legislation as necessary to ensure the fulfilment of its international obligations: Exchange of Greek and Turkish Populations, Advisory Opinion, PCIJ Reports, Series B, No. 10, 21 February 1925, 6.
94. PCIJ opinion at p. 27.
95. Both Poland and the Free City had agreed to accept the Court's opinion in advance and on 6 March 1928, the two Governments signed an agreement to the effect that the Council of the League should be asked not to place the question on its agenda because the parties had agreed to accept the opinion. On 9 March 1928 the Council took formal note of the opinion and of the parties' agreement: League of Nations - Official Journal, April 1928, at p. 433.
96. (1940) ILR 269, from Danziger Juritsen-Zeitung, XIII (1934), p. 42; and Z. für a. ö. R. und V., IV (1934), p. 947.
97. Some support for this conclusion can be taken from the Court's later decision in Interpretation of the Statute of the Memel Territory (Judgment), PCIJ Reports, Series A/B, No. 49, 11 August 1932, 294 at 336. In circumstances where there was an obligation to incorporate a treaty into municipal legislation, but a failure to do so, the Court did not imply that there had been incorporation of the treaty into domestic law.
98. This is consistent with the position under the Vienna Convention on the Law of Treaties in respect of rights created for third parties under treaties: see Article 36(1) Vienna Convention on the Law of Treaties, 23 May 1969 (entered into force 27 January 1980), 155 UNTS 331;
99. Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PCIJ Reports, Series A/B, No. 46, p. 96 at pp. 147-148.
100. See discussion in Anthony Aust, Modern Treaty Law and Practice (Cambridge, CUP, 2000) at p. 208;
101. Paul Reuter, Introduction to the Law of Treaties, (London, Pinter, 1989) at p. 79.
102. Lauterpacht suggested that the ambiguity was deliberate, stating that the Court's "departure from the established view was effected with such ingenious restraint that some have been led to believe that the decision of the Court amounts to a solemn affirmation of the established doctrine": see Lauterpacht, The Development of International Law by the Permanent Court of International Justice, supra, at p. 52.
103. Lauterpacht, "The Subjects of the Law of Nations [Part II]", supra, at pp. 97-99.
104. Lauterpacht, "The Subjects of the Law of Nations [Part I]", supra, at p. 456.