1927

PCIJ

Chorzow Factory Case Germany v. Poland July 26, 1927 Jurisdiction (Reparation)

(21) It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to me stated in the convention itself. Differences relating to reparation, which may be due by reason of failure to apply a convention, are consequently differences relating to its application (30) The Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice

(31) It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him. [exception of non-performance only applies to synallagmatic obligations (prestations) is not to be identified as a countermeasure] (31) if expropriation in consideration of an indemnity is prohibited by … [the Geneva Convention] … a fortiori is a seizure, without compensation to the interested Parties, prohibited The function of declaratory award is: ‘to ensure recognition of a situation at law, once and for all, and with binding force as between the parties; so that the legal position thus established cannot again be called in question in so far as the legal effects ensuing therefrom are concerned’ (1927)