Tous droits- réservés par la
Cour internationalede Justice
Au rights reserved by the
International Court of"Justice Le présent volume doit étre cité comme suit :
rC. 1.J. Me'moires,Afaire relative à L'applicatd ieola Convention .
de ~goz pour réglerLatzctelledes mineurs (Pays-Bas r.Suède) 1)
'
This volume should be quoted as:
"I.C.J. Pbadings, Case coaceraing theapplication of the Conve.pttiort
of1902 governingiheguarda'afislzipfinfamfs(Nelhedands v. Sweden) "
No de vente :
Sdes number 210 / AFFAIRE RELATIVE A L'APPLICATION
DE LA CONVENTION DE 1902
POUR REGLER LA TUTELLE DES MINEURS *
1 (PAYS-BAS c.SUEDE)
CASE ÇONCERNING THE APPLICATION
OF THE CONVENTION OF 1902
GOVERNING THE GUARDIANSHIP OF INFANTS "
(NETHERLANDS v.SWEDEN)
*Note duGvefle- Les renvois a un texte ayant fait l'objet d'uneédition
provisoire'usade la Couront&teremplapardes renvoauxpages de
la prkente Bdition définitive.
*Note bythe Aqastry.-Areferences to a twhichwas issued an
provisioeditifor thuseoftheCourt have been replaced by rtoerencw
the pages inpresendefinitive edition. COUR INTERNATIONALEDE JUSTICE
MÉMOIRES, PLAIDOIRIES ES DOCUMENTS
AFFAIRE RELATIVE A L'APPLICATION
DE LA CONVENTION DE 1902
POUR REGLER LA TUTELLE DES MINEURS
(PAYS-BAScSUÈDE) INTERNATIONALCOURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS,DOCUMENTS
CASE CONCERNING THE APPLICATION
OF THE CONVENTION OF 1902
GOVERNING THE GUARDZANSHIP OF INFANTS
(NETHEXLAND'u. ÇWEDEN) 1PRTNTED 1N THE NETHE~~~ANDS
I 3. REPLY SUBMITTED BY THE GOVERNMENT OF THE
KINGDOM OF THE NETHERLANDS
Plaintiff has subrnitted that the skyddsupflfoskan (protective
education) as ordered is not in çonforrnity with the obligations
binding upon Sweden ais-&-vti he Netherlandç vnder the 1902
Convention on the guardianship of infants.
Defendant kas subrnitted:
that the dispute bears on paternal power, not on guardianship,
and therefore is not covcredby the Convention, and
that, in the presentcase,the national Iaw of theinfant must yield
to ordrepztblic.
* rp *
Since the deceaseofthe infant's mother, two successive guardians
have held office: firMr.Boll, from December 5th) 1953 till August
5th, 1954, as parental guardian, and subçequently Mrs. Postema,
frorn Auguçt 5th, 1954 ,s non-parental guardian.
The protective education has been maintained against the truo
successive guardians. Consequently defendant has to satisfy the
Court that neither guardianship is covered by the Conventioii.
Against the parental guardianship defendant has developed
certain arguments (Counter-Mernorial, Ç:20 et sqq.), to which
plaintiff shall revert hereinafter.
But these arguments, purporting to establish that parental
guardianship is not covered by the Convention, canot bepertinent
in respect of the non-parentalguardianshi(Counter-Mernorial, 537).
Avgwmertts agaz'wsiecondguardia.~tship
What arguments, then, has clefendant brought againçt the second
guardianship? Firstly, that the Dordrecht court, in releasing
Mr. Boll from the guardianship, "sous couvert de décharge de
tutelle, a atteint en faitdes prérogatives de puissance paternelle,
étrangères à la Convention". Secondly, that, in the present case,
"cette mesure particulièrede ofitheging...est propreauxPays-Bas
et inconnue de celledes autres Parties Contractantes qui ne sont
pas tenues d'y avoir égard" (Counter-Mernoriai, $37).
Articl 5eOS the Colzvefition.
Both theçe arguments must be examined in thelight ofArticle 5
of the Convention: "Dans tous Ies cas la tutelle s'ouv...pour les
causes dbterrninkeçpar la loi nationale dumineur."
794 REPLY OF THE NETHERLANDS
The rneaning and purport of this article clear.St concerns the
legal events tbat, under the Convention nust be recogrzizedas
causes that give rise to guardianship. Si recognition, then, is
duc to al1 events that are determined as ci :s by the national law
of the infant.
Rut the article does not concern the ma :r in thich these legal
evcnts are c~eated and established. It doc lot and IC could not.
Under the various legislations of the Cont ting Parties, the most
frecluent events that give rise to guardia [il) are the decease of
an acting guardian and the dissolution O rnarriage. Surely the
Convention does not purport to lay dow~ des on death, on pre-
sumptive death, or on divorce. In these .tterç it just referç to
the national law of the infant.
Release uwderNetherlandslaw
Thus, under Article j, the only releva question is : whether,
under Netherlands law, the onthegilzg(relea of a paternal guarclian
is a cause that gives rise to guardianshj Then the affirmative
answer directly results fram Articles 423âr $24 oE the Netherlands
Civil Code: "The Court ... may release a ;nt-guardian from the
guarclianship of one or more of his childi ; on pronouncing the
releasc the court shall provide likesirisein e matter of guardian-
ship ..."
Prreleuartcyof defendant's fipsargument
And then, in thc light of Article 5,the ii evancy of defendant's
argiimentç becornes obvious. Defendant hc ub~nitted that "under
cover of releaçe from guardianship", tl Dordrecht court has
"actually assailed the prerogatives of pal ial power". This sub-
mission is cxplicitly denied by plaintif sincc it pre-supposes,
and wrongly so, that paternal guardianshi
qhould be triritamount
to paternal yobver (vide Znfra). But even it were aclrnitted, it
would bc immaterial. Once the releasc, ; pronounced by the
Dordrecht court, is a cause that gives ri? o guardianship under
Nctherlünds law, itis iflsojstre a cause th :ives rise to guardian-
ship under the Convention and rnust be r gnized, respected and
accepted as such by al1Contracting Parti
Curiously enough, dcfendünt, in suppo of her argument, has
quoted the Gencva decision of May 6th, r2 (Coiinter-Mernorial,
5 37). The said decision, far from çuppoi ig the argument, just
empkasizes the distinction between, on o hand, thc question of
the creating of a Iegalcvent, and, on thc ier hand,the question
whethei: such event, under the Convention ;to be recognized as a
cause that gives rise to guardianship. 1 latter problem-the
decision holds-is guverned by Article "c'cst d'aprks la loi
nationale du mineur qu'ilfaut apprécier a déchkance ...donne
lieu à l'ouverture de la tutelle (art5 Conv eion)''.Zrrelevaficyof defendartt'ssecondargwnent
T11e second argument is again remarkable for supporting not
defendant's but plaintiff's view. "This particular measure of oxt-
heging ...is distinct from deprivation of paternal power, is peculiar
to the Nctkerlands, and iç unknoum to the other Contracting
Parties, who are not bound to respect it." It isjuçt the inverse
argument that one would cxpect hcre. If it cuuld be established
that the releaçe, though known to other legislations, were mknown
to Netherlands law as a cause giving rise to guardianship, then
defendant might well hold that, under Article 5,no respect to the
release is due. But saying that the release is kno.reinto Netherlands
law as a cause amounts only to confirming tliat, under Article j, such
release must be respected as a cause by al1 Contracting Parties.
Wtscztssioaof firsl gztardianshif rtot si~z'cnecessary
Sincc the protective education kas been maintained against both
the successive Netherlands guardianships, and considering that, in
plaintiff's opinion, defendant lias not established that the second
giiardianship is not a guardianship within the meming of the
Convention, jîlaintiff might refrain from discussing the first guar-
dianship: even if that guardianship were not covercd by the Con-
vention, the case would stand. For the sake of çompleteness, how-
evcr, and in deference to defendant's observations (Counter-Merno-
rial, $20 etsgy. and 5 37), plaintiffmay bc üllowed to offer some
remarks on the matter.
Arg~mentsagainst first guardia.izshifl
Wkat arguments, tlien, has dcfendant brought against the first
guardiançliiy ? Firstly, that the Convention bears on1y on t~telle,
guardianship, and not on ptrissancepaternelle,parental-or paternal
-power (Counter-Mernorial, S 20). Secondly, that parental guar-
dianslzip, as organized under Netherlands law, is riot guardianship
within the meaning of the Convention, hiit rather-to put it
bluntly-parental, power masquerading as guardianship (Countcr-
Memorial, $26).
The firstargztmenl examincd
Plaintiff readily admit5 that thc Convcntirin does not bear on
parental power. But tllat rather raises than solves a problem, since
ü distinction must be made not between t\vo, but Fetweeii threr:legal
institutions, tg \vit
(a) parental powcr, as vested in the infant's parents during
marri age,
(b) parental guardianship, and
(cl non-parental gunrdiançhip.
Now the Convention does not cover (a) and doeç cover (c).But dues
it,or not, cover (b)?The text of the Convention offers no answcr :parental guardianship is not explicitIy included nor explicitly
excluded.
Failing anexplicit provision, onernay ty to arrive at a conclu-
sion by way of kistorical analysis. Owingt?the scarcity of material
in theActes el Docztmentsdela.Conférenced~ laHaye such conclusion
cannot be ofabsolute and indubitable chajacter. But itiscertainly
appropriate to quote KOSTER S,et int~rpationaaibzugerlijrecht
in Nederland, 1917, !ho, after a thoroygh examination of the
documents, summarizes his findings as
"The questionarises whetherthe
guaAlthougli thereis some margin
applicatiot~ otheConvention rnay
the terms of theConvention aregeneneral..l.
The Conveiitionappliesto parentalguakdiansl~ipaftei dissolution
of marriage."
Substantial analysis 1
But thia historical andysis,and the Eollusion it leadr tu, rnay
not satisfy defendant. What she, apparentlr, favours ia substimtial
analysis: the problem should be solved lot by considering the
historical background, nor the denomination, nor the place in the
legai system-in the Netherlaods Code, -1 in pradically al1codes,
parental guardianship is treated under the same heading as non-
parental guardianship-, but only by iooking at the sztbstaace of
the institution.
The secondarg?ment examined 1
This then brings us to the second argurne6tIs parental guardian-
ship, as organized under Netherlands law, substantially tanta-
mount to non-parental guardianship, and therefore guardianship
within the rneaning of the Convention, or isit only parenta1 power
rnasquerading as guardianship ? !
The question can be settled by a cornpa+son between the rights
and duties attendant on (a) parental powea, (b) parental guardian-
ship and (cl non-parental guardianship. 1
Two clisses ofrightsand daties I
On examining the Netherlands Civil Code, one then finds that
there are two classesof rightsand duties. 1
The first çlass pertains equally to parentai power, to parental
guardianship and to non-parental guardiadship. It consists of the
rights and duties to represent the infant in al1 legatrnatters, to
administer itç property with due care, of fhe duty to secure the
infant's maintenance and of the right to educate the infant. No
distinctionis made between the non-parental guardian, the parental REPLY OF THE NETHERZANDS (18 VI 58) 97
guardian and the parent holding parental power, except for the
latter two heing under a speçial duty, to wit the duty #ersa.izaZLy
to educate the infant.
The second class pertains to parental guardianship and to non-
parental guardianship, but no.!to parental power. 1t consistç ofthe
duties to draw up an inventory, ta deposit moneys, to obtain the
jwdge's authorization for practically al1 dealings affeçting the
infant'sproperty, toinvest rnoneys in the safest manner possible,
and to submit to the supervision of,and render annual and final
accounts to, an assistant-guardian. No distinction is made between
the non-parental and the parental guardian, except for the latter
not being under the obligation torender anaual accounts, unless the
judge so directs.
The qztestiorsettled
I
Wow one would expect a third clasç, consisting of rights anci
duties pertaining to parental power and to parental guardianship,
but not to non-parental guardiançhip. Bzbt lhere isno such class.
The only duty that could posçibly be mentioned is the duty,
already stated, incumbent both on the parent holding parental
power and the parental guardian, personally to educate the infant.
This then, plaïntiff submits, settles the question. A substantial
analysis shows that, under Netherlands law, non-parental and
parental guatdianship have practically everything in comrnon,
whereas parental power cliffers fundarnentally from both.
1 Parental power lzlzparenfhood as s~h .
How then can it possibly be held that parental guardianship is
no guardianship, and only parental power in disguise? Some confu-
sion may have arisen from such rules as
that an infant needs parental consent for çontracting a rnarriage,
that, to itç parents, the infant owes not onEyreverencc but also
veneration,
that the parents shall maintain the infant in accordance with their
financial status
- al1sules that affect parents, and parentsonly. But the said rdes
have no relation whatsoever to parental power, nor ta parental
guardiançhip : tkey result frorn parenthood as swch, irrespective of
guardianship or power. Now the rigkts and duties pertaining to
parenthood as such can never be taken away. This is clearly
shown by the fact that they persiçt and rernain intact even after
, the parent has been deprived of his parental powes (or parental
guardianship, as thecase may be) :the parental consent for rnarriage
etc. is requiredas before.
Etis then obvious that,in ascertaining whether parental guardian-
ship isguardianship within the meaning of the Convention or onlyparental powel-in disguise, rules resuIting parenthood asçuch
cannot be takcn into account.
Colzch~sz'ons6g:gard NetgerlandsgHardid,tshi$
Piaintiff subrnits that defendant has fad/ed to establish that the
successive Netherlands guardianships are not covered by the
Convention.
The second, non-parental, guarclianshij:, is fu11ycovered by the
Convention as resulting fromacause thatl under Netherlands law,
pves rise to guardiançhip (Convention, ArFi5).
This, hy itself, would suffice. Bcsider, howcver, the first-
parental-guardianship is likewiçe fully coyeredtheConvention,
considering that historical analysis indicates and siibstantial ana-
lysisclcarly shows that parental guardiankhip, as nrganized under
Netherlands law, is guardianship within tde Convention's rneaning.
11. THE CONVENTIOO NR, DREPUBLIC AWD PHOTECTIV ED WCATION
Defendant's argztmerzts 1
Defendant has subrnitted, firstly, th1the application of the
infant's nationalaw must $eld to thc provisions of such domestic
laws as belang to ordrepublic and thdi the provisions ofthe
Swedish law regarding protectioe education have anordre public
character (Counter-Memoriai, $38).
Plaintiff now-pr-poses ta show
that ordre ~zkbiiccannot operate againçt cdnventionç,
that, açsuming it could so operate, in 1present case the condi-
tions that would permit the operation of ordre @iblic have not
been. eçtablished.
*
* *
A. Ordre public and international conventions
I
Ordre $ubZi cxd caation. l
Defendant has outlined the principle# ordre public (Counter-
Mernorial,$3 38-40),without however mentioning one principle
which is of vitaimportance, to wit
1
that ordreflwblzmust be handled ia spiriof caution, reserve and
self-restraint.
This principle, plaintiff believes, requires lno detailed adstruction.
It is expressed, elaboratcd and emphasizfd in al1 treatises and
manuals of al1countries. But it may be wo~th noting thaifthere
iç any country where the principle is particuIarly insisted upon, it
isSweden. Al1Swedish authorities on privdte international law vie in pointing out that ordrepublic shoulçl be applied in a spirit ofself-
reçtraint, reserve and caution, that it should never be made use of
as a magic wand, as a convenience, in a light-henrted manner, and
beyond absolute necessitjr, and that a rule of foreign law should
be set aside by ordre flublic only ifsuch rule is abhorrent-a term
used by al1 author-to Swedish latv. Vide: EKSTROB I~k irtter-
nalionalekt ;brivatrattsiiga wb+satser, p. 58; HULT, F6~ildrav och
bar% enligt svelzsk i.~zternatio?zellprivatyatt, p. 23; KBRLGREN,
Xortjatfad Zi~aboh i internatiolzel;brz'vatritï,. 45, and the same in
Soensh ,pztristtid.ning, 1g56, p. 405 : MICI-IAELII ,~tter~zat20~ales
Privatrecht gewziss schwedzschemReclal, p. 67.
Doztblecaz$tion z'lthe ficld of interlzatio.rconventions
1
Now if, in applying ordre public generally, caution is to be
obçcrved, siirely double caution must be observed in the field of
international conoentiorzs. Defendant, it seems, more or lcss sug-
gests that, in applying ordreflublic, it makeç no difference whetker
an international convention has bcen concluded or not. This çer-
tainly cannot be held, and that for four reasons.
Firstly, in concluding a convention whereby forcign lalv is to be
applied, a state not only announces that it adopts a principle-an
announcement that may be retracted at any time-, but it also
binds itself tuwards its partners to maintain that principle. Pacta
sunt ssrvanda.
Secondly, before concluding such convention, a state naturally
first examines whether the existing laws of its partners-laws it
must henceforth apply-are of a character such that, although
different from its own system, at lenst they arc acceptable for
application within its rcalrn, and not "al~horrcnt" to its own latvs.
If that examination would not have yielded a positive result, the
conventioii w~ulcl not have been concluded, and so the verg fact
of its conclusion shows that the partner's laws, as they stand, are
acceptable and cannot be sct asicleby ovdre pztblic.
Thirdly, by concluding a convention, a state shows its conh-
dence-at least for the period thc convention is going tri laçt-in
. the future development of its partners' lcgislation ; failing such
confidence it would havc abstained from entcring uyon the conven-
tion. And that very confidence precludes the state from rejecting
its obligations. In highly exceptional circumstances confidence rnay
be betrayed, a fundamental change of the partner's political régime
rnay reflect on its private law, but even so the obligations must be
sespected, be it reluctantly and subject to the desire to denounce
the convention at the earlieçt opportunity.
And, last not least, the operation of ordre~wbZic against a conven-
tion, if alowed, would enable any contracting state to destroy the
very object of the convention-under the motto of ordre #.ublic it
would have a free hand, both through contrary judicial deciçionç100 REPLY OF THE NETBERLANDS (18 VI 38)
and through contrary legislation, to divestthe convention of al1its
contents, its value and itç binding power.
For al1these reasons, once a convention has been concluded, the
scope and margin for ordre$ubZicis much jarrower than before-so
much narrower that it may well be held that henceforth thete is
practically no sçope and margin left,
Doctrifie
And Ihat is the thesissupported by a gqaxy oflearned authors.
Defendant has made the astonishing statement that, in the opinion
of practically al1 authors on conflictof law, ordre $ubLic can over-
rule conventions-"l'avis des publicistes 1est formel" (Cynter-
Mernorial, $42)-and that there are only fqwauthors "qui hesitent
A admettre de faqon généraleque l'ordre lpuplicpuisse faire obstacle
à l'application du statut personnel prescrite par une convention"
(ibidem 5,49).
That is an astonishing staterncnt. since bne has only to consult
the doctrine in the various countries in ordtolarrive at thopposite
conclusion and to observe that the learned authors quoted by
defendant represent a minoxity viei-an$ even that with quali-
fications,in sofaras the view appcsarsta be pmited to "lal6gislation
à venir" (quotation fram BATTIFOLC , ounter-Mernorial, $42).
The thesis that ordrepzcblicannot genergly ovemule conventions
is held, arnongçt others, by NUSSEAUMD , eulsckas Internationales
P~ivalrecht, p. 70; FRANKENSTEIN ~,nlernlalionalesPrivatr~cht 1,
p. zzz; WALKER In,ternationales Privatrecbt,p. 875; ÇCHNITZER,
fiandbuch 1, p. 237; LEWALDD , as deutsche z'nternatz'oflerivai-
rechf,p. 28 and in Revue Darras 1928, p. 149; 80~~~4, Grundrissdes
i5ste~re.ÉchischIntern~lionalelz Privalrechfs, p. 24; WOLFF, Das
internationale P~ivatrecht De.lttschlands, p$O; MELCHIOR G,rwnd-
k~gefi,p.358. The scope of the present statkment forbids extensive
quotationr from al1 the foregoing treatisesj but it may be allowed
to insert the opinions of the two authors Iast rnentioned.
"Lewald rjghtly emphasizes the dangers rhat arise, once ord~l:
$oblPcis upheld in respect ofstate conve;ftionsThis would enable
any state yracticalIy to restrict tlie appli~ation of the convention
ad libit~ mnd, insuc11manner, to divest tmconvention of practic- .
ally its entirvalue" (WOLFF , c.).
"In my opinion it should be held, incyc of doubt, tliat within
the rcalm of state conventinns on conflict of law, application of
ordre pdic cannot be allowed.Normally the states that are parties
to the international convention will intend to create obligations of
an equable and predictable character. I!, however, one admits
exceptionsby virtueof ordwpublzc,one mqst interfere considerably
with the state convention, and this in a Inanner that cari hardly
be foreseen On contrücting, sincordre pudlic is less clearly defined
thari other conflict principles. Anifonelis to permit the courts
to apply o~drepublic within the rertlmof state conventions, one
must necessarilg also approve suc11ulteiior laws of a contracting state as undermincthe convention in tlic name of ordmpublic.This,
in caseof doubt, would beundesirable"(MELCHIOIR .c,.).
Case lalu
The case law on the problem-vide LEWALD in Durras, and
MEI+CHIOR-is rather scanty. But this, by itself, proves th&,
though the number of conventions that might have given rise to
questions of ord~epztblicis considerable, litigants and courts have
felt that, in theface of conventions, ordre Public ought not to be
invoked, much less be admitted.
In respect of the French decisions, quoted by defendant (Counter-
Mernorial, $ 421, plaintiff may point out that said decisionç are
concernecl with adjective la-? and not-as in the present case-
with substantive law and that they do not express any general
principle. Furthermore itiç well worth noting that the two ltalian
decisionç, quoted byBATIEFOL Traité,No. 364<go agains te thesis
of the primacy of ordre public, the thesis of which the distinguished
author isone of the few advocates.
l Conclusion on ordre pdcbliand conventions
Plaintif? primarily subrnits that ordre pztblic cannot be invoked
against international conventions generally and consequently not
against the 1902 Convention. Accordingly ordre fiub2.t~çannot set
aside the "statut personnel du mineur", as embodied in the Con-
vention.
Plaintiff subsidiarily submits that, inçofar as a margin might be
granted to ordre public as against international conventions, such
rnargin should be considerably narrower than in the absence of
conventions. Within this margin double caution should be obçerved,
and the conditions for ordre fl~bblic-towhich conditions plaintiff
in the rnost indubitable and incontestable manner.nlyifestablished
~ B. Conditions for ordre public
Foreign law versus domesticLam
1
Before entering upon the examination ofthe conditions recluired
for the operation of ordre pwblic, plaintiff may be allowed-for
brevity's sake-to re-state the issue in terrns of foreignlaw and
domestic law.
Defendant has stated that "l'éducation protectrice affecte la
garde de l'enfan...et fait obstacle ii ce que ce droit de garde
soit exercé" (Counter-Mernorial, $34) and that, in her opinion, tkis
is justified by the principle that "l'application du statut personnel
dhn niranger doit ceder devant les dispositions du lieu qui relevent
de l'ordre public" (ibidem S:8). Plaintiffrnay paraphrase this çtatement as follows :
that the fuli application of the foreign law has been impeded by
the application of the domestic law and tdiç by operation of ordre
;bubLic.
Conditions : connection and facts
What, then, are the conditions for the operation of ordm fiublic?
Firstly, thai therç should be a manifesf connection between the
situatiorz to which ordr-Peublicisappiied, ayd the country where it is
applied. Obviously, failing such connection, therc is no haçis for
ordre pzttilic.
SecondZÿ, that there should be facts of buch character that they
bear out a.departure frorn the normal ap$lication ofconflict rules.
Considering that ordve $ublic aperates as an exception to the
normal functioning of conflict of law rules, as "un é1Cmenp terturba-
teur", it is for defendant to show that, in thlpreçent case, theabove
two conditions have been fulfilled. However, plaintiff is ready to
show that they have not. 1
1. ORDRE PUBLIC: CONNECTION 1
Adjective and sz$bstantiveconnectio?t 1
For the operation of ordre pzlblicit ie, firofall, required that the
/orzw. should have jurisdiction. A procedural, an adjectiveçonnec-
tion is indispensable. But does the operafion of ordrepublic also
require what rnay be called a swbstafitiuecqnnection? Tsit required
that the situation, the rnatter under jurisdIction, should have a
certain connection with the country of the forzrm?
For an affirmative answer plaintiff mdy be allowed to quote
LEWALDR , ègks g&&raLes des coflfldsdesloilsp. 125 :
"Mais ilexiste encore ui~c rclativitt: l'ordre publrc ..qui ine
setnbled'unc importance particulière. Pour que l'ordrepublic de la
lexforipuisseernpedier l'applicationdelalloiktrangérecompétente,
il fauque lescircoristancesde fait qu'isjagit d'appr6cicaient tine
attacl-ic sirfisanavec le pays diifor. ?ans des cas rares et ex-
ceptionncls.il suffitpour clue,cette relation existe,que Ic juge
national ait 1connaître du litige.Mais,cependant, dans la plupart
descas, cetteattache n'estpas suffisati$ur justifier !'intervention
dc l'ordre public..C'est donc l'iritensile l'attache existant entre
le rapportA juger et Tepays du for qui est décisive."
Swbsta.ntiveco~znection alzddoctrine 1
In further support of substantive connection-"~nnenheziehun~",
"Binnenbeziehung"-as a conditio sinequa .noffor the operation of
ortl~efiublic, the following learned authors, rnay be quoted:
u7~~~ o~c,.p. 66:
"In most cases...the exclusion of foreign law by ordrepublic
ismade conditionalon a coiinectionwith Germany,either the person
to be protected being a German, or the Situation materializing in
Gerrnany." "As a rule... thcrmust bc a special connection for justifying
theinterference of German ordre p.ubliThe German legislntor does
not want to create a world-legislation...He docs not issue rules
forcaseç thnt have no connection whatsoever with Germany. If,
infringement ofaapGerrnann law...thenmatter on which the foreign
mle isto be applicdmust have a certain connectionwith Germany,
the German territory or the Gcr-trîapeople."
NIED EKER, Eznfiilarungir zieallgemcin~nLehren des intentationalen
Priwatrechts,p. 296 :
"The 'Uinnenheziehung', in rnÿopinioii, always exists whcn one
of the parties concerned ic;domiciled inthe country or whcn the
property undcr dispute issituated in that country. No sufficient
'Bitineiibeziehung'hoivevcr is established, inmy opinion, 6y a
seizureeffected bya foreigiicreditor against a foreigndebtor who
happens to have property iii S~vitzcrland"(i.8.the country of the
10r~wa).
SEC also: SCHNITLER H,andbuch 1, p. 230; AGO,Reczieil LVIlI,
p. 447 ; LEWALDD , as dewtsckez'nter.~aatiorzalrivat~echt,p. 35.
Substantiveconw.ection and cases
To ~vllatextent has tlzis principle of substantive connection been
adopted by the courts in the various countries?
The principle has hardly ever been pronounced by any court
explicitly (MELCHTO I.c.,). There are soine decisions where ithaç
been laid down implicitly. See ior instance tkc well-known judg-
ment of the hustrian Supreme Coi~rt of June 18, 1907, where it
was rtiled tliat: rîordre pwlilic objection could hc raised against
marriages contracted abroarl by foreigners domiciled abroad-tlze
Cciurt, it was held, ~nust not seiip as a" Weltjudikatur" (\VAT.KER,
IvtternationalesPrivatrecht, p. 315). See alsci the two judgmentç of
the Netherlands Suprerne Court, bot11of March 13, 1936, where, in
resyeet of two international loan-contracts, ordre pzrblicwas applied,
respectively not applicd, on the ground that the one was to be
performed in the Netherlands and the other was not (L,EWRLD,
Règles ginbales, p. 126 ;VAN BKAKET,N , aderlands Ifiterwationaal
+rivaatveclzt,p. 86). But, and thiç is far more important, in the
practice of the courts, in al1countries, the #ri?zcipleisalways taken
inlo accownt and cumfllied witlt.It would be hard to quote any
decision, frorn any country, and in any sector of private interna-
tional law, where ordrefiztblihas been applied without there being
-in addition to the procedural connection-some substantive
coili-iectionsuch as nationality , domicile, or residence of parties, or
property under dispute situated, or an aet or an ofice performed,
or to be performed, within the country.I"4 REPLY OF THE NETHERCANDS (18 VI 58)
Si~bstantiurconaectia ond protectionof infbnts
And this applies particularly to decisidns concerning the pro-
tection of infants in the \*idest sense. ~laiitiff haçbatnpains to
examine the decisions in this field, as pron~unced in the çtates that
are parties to the 1902 Convention, and elsewhere, inçluding those
quoted by dcfendant (Counter-Memorial, 5541 et sqq.).She has
found no judgment, invoking ordre ptxblic,where one or more çub-
çtantive connections could not be traced, sycas domicileofparents
and ckild, and parental power, or guardianship, exercised, or the
exercised, witkin the country.
The threeNetherland dscisiows l
The three decisians of the Netherlands suprerne Court, quoted
hy defendant (Coilnter-Mernorial, pp. 87-g~,Annex G),afford an
excelient illustration of theholding ofthé substantive connection
principle. In all three cases both the gjardian and the infant
reside in the Netherlands. And in al1threy cases the guardianship
has been exercised and 1sfurther to be exercised within the coun-
try. It is particularly this rnaterializing othe situation in the
country of theforum-see WOLFF quuted above, and alço~~IIGHAEET,
o.c.,p. 68-that is taken into account : the Iinterests of the comrnu-
nity, so the Supreme Court holds in its judgment of September 23,
1949, recluire that children should nogro? up here ("ne grandis-
sent pas ici") in such rnanner that they should be thrcatened with
mental or physical ruin.
Substantive conncctionirrme presext sihatibn?
And then onc May well ask: where, in the yresent situation, is
the substantive connection always requlired for ordre fiublic?
Neither the infant nor the guardian are Syedish nationals. Nor is
the guardian a domicjliary or a residentqf Sweden. And it iscer-
tainly ncltintended to exerciçe any future guardianship in Sweden;
it is not in Sweden that the legd relation Iskoing to rnateridize. On
the contrary: no effort ha been spared to bave the infant removed
to the Netherlands. It is even particularly fn order @ment such
transfer of the child that the protective ed~cation has beenmain-
tained-vide the motives of the Decree oOctober jth,1954 (Memor-
ial, p.24, Exhibit E; Counter-hlernorial,pl.58, Annex 7).
l
Residencc ofin/ant suhlanliv ton nec lion1
Now here defendant may subrnit that, tdough other connections
are wanting, there iione connection : the infant resides in Sweden.
Against this submission plaintiffmay 4rirnarily hoid that the
single reçidence of the infant is aosufficient connectionTtshould
be borne in mind that the protective dflucation, the rneasure
ordered by tbe fo~uw by virtue of ordre flzlblic, implies a criticism
of the guardian, nOt of thinfant. Then the centre of gravity of themeasure ,lies with the guardian, and, accordingly, not in Sweden
but in the Netherlands.
Eorced connectiow as no colznection
But there is another aspect to the matter. "La notion d'ordre
public", PIELETsays, "fait partie des choses qu'on sent mieux qu'on
ne les exprime." One sornehow feels that, in accepting the infant's
residence as a connection, something is wrong that is not quite
easy to expiain. Nevertkeless, plaintiffmay try. It iç that the in-
fant's residence in Sweden-not originally, but certainly at alater
stage-has been determined, not by normal causes such as the
wish of the guardian, but by the firotectivt educatioa ilsel/. When
the measure was first taken, it might be held, the infant just
happened to reside in Sweden. Since then howevcr-as stated above
-no efforts have been spared to take it out of the country. But in
vain : the transfer has been blocked by the protective education.
Consequcntly, at the later stage, and at the present day, the resi-
dence has been determined by the continuation uf the rneasure.
And then one is struck by the paradox of the situation. If the
residence is based on the measure, how then can the measure be
based on ordve pztbliç which has the residence for its only basis?
Surely ordrrpablic cannot have for its foundation the very fact it
has provoked. It is exactly by the same token that NIEDERER-vide
st4#ra-cannot allow a seizure to function as a substantive connec-
tion. Just as, after thc seizure, the property is hencefotth located
in the country of the forum hy virtue of the seizure, so, aftes the
protective education has been pronounced, the infant is henceforth
a resident by virtue of the protective education-just so, and even
more so, since it is certain that, but for the measure, the infant
wo.kcLdhave becn transferred.
What, then, is wrong with taking the infant's residence as a
connection? That an ordre pzikblicmeasure cannot forcibly create
its own foundation: forcedcorznectii so.rtcolznection.
Plaintiff subrnitç that substantive connection is a conditi sifie
qua .nonfor the operation of ordre public and tkat, in the present
case-and this in contradistinction to ali known cases where ordre
fiublic has been apptied-a substantive connection has not been
established.
2. ORDRE PUBLIC : HACTS WtlRRANTIlVG DEEARTURE
In the present case-according to defendant's plea-the pro-
tective education is justified by ordrepztblic. REP1.Y OF THE WETI3ERLtZNDS (18 VI 58) Io7
rules. Mr. Boll's character had proved unstaineù; besides he had
been released meanwhile of his guardianship - this at his own
reyuest - and replaced by Mrs. Poçtema, whose repute and yuah-
fication had never been subject tu any doubt (hlemorial, p. 23,
Exhibit D; Counter-Mernorial, p. 54, Annex 5).
It was for these motives that the OçtergiXland.Coui~ty Govern-
ment ordered the protective education to be declared atan end.
And now, ut the $~.esenltime, is there any fact left that warrants
and bears out the departiire from the norrrial application of mnflicts
rules!
In the Counter-Mernorial yroper no such fact is mentioned.
Among the Annexes, there is only one that offers any handhold
at all. It is the Decree of the King in Council of October 5, 1954
(Counter-Mernorial, p. 58, Annex 7 ;Mernorial, p. 24, Exhibit E).
In this Decree it is held that certain facts-dlegedly arnoiinting
to a danger to the çhild's mental health-rcquire the protective
education, and, çonsequently, impose a departurc from the normal
application of conflict rules.
What, then, are thesc facts, and do they warrant and bear out
such departure ?
The flresent.sdztatio: facts ?
In the Decree the following facts-or rather motives-are
mentioned :
"Tt has ~iot even been stated uilder wi;liaconditions Catharina
Posterna xvould takc rare ofthe child nor kiowfar slieis suitableto
do so."
It rnay bc taken that the Dordrecht Court would riot have ap-
pointed Mrs. Posterna if ske were not suitable. But the motive is
particularly remarkablc for shifting tlie burden of proof. Sul-elyit
is not for the autlzorities who appoint a guardian toprove that the
appointcc is suitable, but for those who order protective education
to prove thnt he is not.
"One cannot rcad from the dccision of tlie(Dorclrecht) Court
tl-iathe father11% resigned asguardian."
The Dordrecht decision explicitly releases the father from his
guardianship.
"For lack of information ...it is impossible to judge whether
the arrangements ordered by the Court may be cxpected to be
permanent." The guardianship of Mrs. Posterna hdç been arranged-as all
guardianships-for an indefinite period ;obviauely no guarantee
can be offered that it iç t,o be continued yermanently (i.8.tilthe
child'çmajority).
"For Iack of information ...it is im$oççible to judge whether
the child might not even in that case (leon posible temination
of the guardianship of Mrs. Posterna) corne under the influence of
her father."
This motive cames no weight whatsoevir, unlcss it is stated and
preved that the father's influence, at some future tirne, rnay affect
the child's mental health.
Thus far, no fact hae been stated that could possibly bear out
or warrant a depal-ture of the normal apqlication ofconfiict rules.
But now, in the very last yaragraph of the Decree, there is a
rernarkable staternent :
andIof the other circumstances statein$"idence, itiçohvious thatd
the rernoval of the chito a wholly stra~ge environment would at
present seriouslyendanger her mental health."
I
The "other circurnstances stated in ebidence" again offerno
handhold. But what about the "dissensia/ to whicli the child has
been exposed" 7If the child has been so cxposed it must have been
at its Norrkoping home, and-since the father and Mrs. Postema
were practicdly nevez admitted-by the persons charged with the
protective education and by other persons they may have adrnitted
to the child.
Thus the motive adduced for the contiquation of the protective
education rather appears a motive for its disconfinztation.
Plaintiff suhmits that no fact has been rkentioned that warrants
and bears out the departure from the normhl application ofconfliçt
rules. The protective education in respect of Marie Elisabeth Bol1 is
vis-ta-visthe Netherlands by virtue of the 1902 Convention govern-
ing the guardianship of infaonsthe following groun:s
1. that the yroteçtive education affects Netherlands guardian-
ship, fullcoveredby the Convention;
11. that ordre public cannot prevail against the Convention,
~ because
A. ordyepublic genesallcannot overrule conventionsand
~ B. even if ordre $ubZicouId overruleconventions, the con-
ditionsor ordrepublic have not been cornplied,since,
in the preçent case,
I.there is no suhstaritive connection between the situation
and Sweden ;
2.no facts have been stated that warranand bear out a
departure fromthe normal application of çonflict ruleç.
Therefore, Sweden is under the obligation to discontinue the
protective education.
The Hague, June18th rggS.
(Signed)W. RIPHAGEN,
Agent for the Government of the
Kingdom of the Netherlands.
Reply submitted by the Government of the Kingdom of the Netherlands