1 July 1952

 

General List No. 15

 
     

international Court of Justice

     
 

Ambatielos

 
     

Greece

 

v. 

United Kingdom

     
     
 

Judgment

 
     
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BEFORE:

Vice-President: Guerrero, Acting President;
President: Sir Arnold McNair;
Judges: Alvarez, Basdevant, Hackworth, Winiarski, Zoricic, Klaestad, Badawi Pasha, Read, Hsu Mo, Levi Carneiro, Sir BenegalRAU, Armand-Ugon ;
Judge ad hoc: M. Spiropoulos
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1952.07.01_ambatielos.htm
   
Citation: Ambatielos, Greece v. U.K., Judgment, 1952 I.C.J. 28 (July 1)
   
Represented By: United Kingdom: Mr. V. J. Evans, Assistant Legal Adviser of the Foreign Office, as Agent; assisted by Sir Eric Beckett, K.C.M.G., Q.C., Legal Adviser of the Foreign Office; Mr. D. H. N. Johnson, Assistant Legal Adviser of the Foreign Office; Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar, as Counsel;

Greece: M. N. G. Lely, Envoy Extraordinary and Minister Plenipotentiary of H.M. the King of the Hellenes in the Netherlands, as Agent; assisted by The Right Honourable Sir Hartley Shawcross, Q.C., M.P., former Attorney-General of the United Kingdom; Mr. C. J, Colombos, Q.C., LL.D., Member of the English Bar; M. Henri Rolin, Professor of International Law at Brussels University, former President of the Belgian Senate; M. Jason Stavropoulos, Legal Adviser of the Ministry for Foreign Affairs, as Counsel.

 
     
 
 
     
 

[p28]

The Court,

composed as above,

adjudicating on the Preliminary Objection of the Government of the United Kingdom,

delivers the following Judgment: [p30]

9
On April 9th, 1951, the Greek Minister in the Netherlands, duly authorized by his Government, filed in the Registry an Application instituting proceedings before the Court against the United Kingdom of Great Britain and Northern Ireland concerning the claim relating to the rights of a Greek shipowner, Nicolas Eustache Ambatielos, alleged to have suffered considerable loss in consequence of a contract which he concluded in 1919 with the Government of the United Kingdom (represented by the Ministry of Shipping) for the purchase of nine steamships which were then under construction, and in consequence of certain adverse judicial decisions in the English Courts in connection therewith.

The Hellenic Application refers to the Treaty of Commerce and Navigation between Greece and Great Britain, signed at Athens on November 10th, 1886, and to the Treaty of Commerce and Navigation between the same Contracting Parties signed at London on July i6th, 1926, including the Declaration. The Application requests the Court:

"To declare that it has jurisdiction :

To adjudge and declare....

1. That the arbitral procedure referred to in the Final Protocol of the Treaty of 1886 must receive application in the present case;

2. That the Commission of Arbitration provided for in the said Protocol shall be constituted within a reasonable period, to be fixed by the Court".

Pursuant to Article 40, paragraphs 2 and 3, of the Statute, the Application was notified to the Government of the United Kingdom and to the States entitled to appear before the Court. It was also transmitted to the Secretary-General of the United Nations.

The Memorial of the Hellenic Government was filed within the time-limit prescribed by Order of May 18th, 1951, and later extended by Order of July 30th, 1951. It sets out the following Submissions:

“…the Hellenic Government requests the Court to adjudge and declare:

(1) That the United Kingdom Government is under an obligation to agree to refer its present dispute with the Hellenic Government to arbitration, and to carry out the Judgment which will be delivered;

(2) that the arbitral procedure instituted by the Protocol of the Greco-British Treaty of Commerce and Navigation of 1886, or alternatively, that of the Treaty of Commerce of 1926, must be applied in this case;

(3) that any refusal by the United Kingdom Government to accept the arbitration provided for in those Treaties would constitute a denial of justice (Anglo-Iranian Oil Company case, Order of July 5th, 1951 : I.C.J. Reports, 1951, p. 89);
(4) that the Hellenic Government is entitled to seise the Court of the merits of the dispute between the two Governments without [p31] even being bound to resort beforehand to the arbitration mentioned under submissions 1 and 2 above;

(5) alternatively, that the United Kingdom Government is under an obligation, as a Member of the United Nations, to conform to the provisions of Article 1, paragraph 1, of the Charter of the United Nations, one of whose principal purposes is: 'to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations', and to those of Article 36, paragraph 3, of the Charter, according to which 'legal disputes should, as a general rule, be referred by the Parties to the International Court of Justice'. There is no doubt that the dispute between the Hellenic Government and the United Kingdom Government is a legal dispute susceptible of adjudication by the Court."


On February 9th, 1952, within the time-limit prescribed by Order of July 30th, and later extended by Orders of November 9th, 195.1, and January 16th, 1952, the Government of the United Kingdom filed a Counter-Memorial in which, whilst setting out its arguments and submissions on the merits of the case, it contended that the Court lacked jurisdiction, expressly presenting this contention as a Preliminary Objection under Article 62 of the Rules of Court. As regards jurisdiction, the Counter-Memorial requests the Court to adjudge and declare that it has no jurisdiction:

"(a) to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Government based on Article XV or any other Article of the Treaty of 1886;

or

(b) itself to decide on the merits of such a claim",

and that, likewise, it has no jurisdiction :

"(a) to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Government for denial of justice based on the general principles of international law or for unjust enrichment, or

(b) itself to decide upon the merits of such a claim."

The filing of the Preliminary Objection having suspended proceedings on the merits, a time-limit was prescribed by Order of February 14th, 1952, for the presentation by the Hellenic Government of a written statement of its Observations and Submissions on the Objection. Furthermore, the States entitled to appear before the Court were informed of the deposit of the Objection. [p32]
The Observations and Submissions of the Hellenic Government were filed on April 4th, 1952. They contain the following Submissions:

“…the Hellenic Government asks that it may please the Court to dismiss the Objection to the jurisdiction lodged by the British Government and, adjudicating upon the Submissions relating to the competence of the Court, formulated in the Application instituting proceedings and hereinafter clarified:

1. in the first place, to hold that the United Kingdom Government is bound to accept the submission to the International Court of Justice, sitting as an arbitral tribunal, of the dispute now existing between that Government and the Hellenic Government, and accordingly to fix time-limits for the filing by the Parties of the Reply and the Rejoinder dealing with the merits of the dispute;

2. alternatively, to authorize the British Government to notify to the Greek Government, within the time-limit of one month, its preference, if any, for the submission of the dispute to the decision of a Commission of Arbitration as provided for in the Protocol of 1886, it being understood that in the event of a failure by the British Government to exercise this option within the time-limit laid down, the proceedings on the merits will be resumed before the Court, the President of which, upon the Application of the Hellenic Government, shall fix time-limits for the riling of the Reply and the Rejoinder;

3. in the further alternative, to direct the Parties to put into execution the procedure for a Commission of Arbitration as provided for by the Protocol of 1886;

4. in the final alternative, if the Court should hold that it cannot decide as to its competence without further information as to the merits, by application of Article 62 of the Rules, to join the Objection to the merits."

After the deposit of the Hellenic Government's Observations and Submissions, the case was ready for hearing, in so far as the Preliminary Objection was concerned. As the Court included upon the Bench a judge of the nationality of one of the Parties, the other Party—the Hellenic Government—availed itself of the right conferred on it by Article 31, paragraph 2, of the Statute of the Court and appointed Professor Jean Spiropoulos to sit as judge ad hoc. As the President of the Court was the national of one of the Parties, he transferred the Presidency for the present case to the Vice-President, in accordance with Article 13, paragraph 1, of the Rules of Court. Public hearings were held on May 15th, 16th and 17th, in the course of which the Court heard Sir Eric Beckett, Counsel, on behalf of the Government of the United Kingdom; and M. Lely, Agent, Sir Hartley Shawcross and M. Henri Rolin, Counsel, on behalf of the Hellenic Government. [p33]

In the course of the argument before the Court, the following Submissions were presented :

On behalf of the United Kingdom Government:

"The formal conclusion of the United Kingdom is that the International Court of Justice has no jurisdiction to deal with the claim brought against the Government of the United Kingdom by the Hellenic Government in respect of the treatment of M. Ambatielos."

On behalf of the Hellenic Government:

"In the light of the Submissions of the Parties:

Having regard to Article 29 of the Treaty of Commerce between the United Kingdom and Greece, signed in London on July 16th, 1926, and, in so far as it may be necessary, to the Declaration of the same date,

May it please the Court: to record a finding for the Hellenic Government:

1. that the complaints formulated by that Government in its Memorial, relating to the breach of the contract of sale of the ships, to the unjust enrichment, to the non-production at the trial of certain documents of which M. Ambatielos was unaware and to the improper administration of justice (denial of justice stricto sensu), all have, in the opinion of that Government, a legal foundation in Articles I, X, XV, paragraph 3, of the Treaty of Commerce and Navigation of November 10th, 1886, and likewise in Articles 1, 3 and 4 of the Treaty of July 16th, 1926, which are in identical or equivalent terms to the first two provisions referred to above ;

2. that the British Government has, through its Counsel, Sir Eric Beckett, expressed its willingness that the Court should undertake the function of arbitration in the event of its holding that it has jurisdiction to decide the question whether the Greek claim should be submitted to arbitration, as provided for by the Protocol annexed to the Treaty of 1886, and in the event of the Court's giving an affirmative decision on this question.

This having been done, for the reasons indicated in the Hellenic Observations and enlarged upon by Counsel;

to hold that it has jurisdiction to deal with the merits of the Hellenic claim, and accordingly to fix time-limits for the filing by the Parties of the Reply and the Rejoinder on the merits;

in the alternative, if the Court should hold that it cannot reach a decision as to its jurisdiction without going into the merits, by application of Article 62 of its Rules, to join the Objection to the merits." [p34]


The Treaty provisions herein before mentioned are as follows: Treaty of Commerce and Navigation of November 10th, 1886

"Article I
There shall be between the dominions and possessions of the two High Contracting Parties reciprocal freedom of commerce and navigation. The subjects of each of the two Parties shall have liberty freely to come, with their ships and cargoes, to all places, ports and rivers in the dominions and possessions of the other to which native subjects generally are or may be permitted to come, and shall enjoy respectively the same rights, privileges, liberties, favours, immunities and exemptions in matters of commerce and navigation which are or may be enjoyed by native subjects without having to pay any tax or impost greater than those paid by the same, and they shall be subject to the laws and regulations in force.

Article X

The Contracting Parties agree that, in all matters relating to commerce and navigation, any privilege, favour, or immunity whatever which either Contracting Party has actually granted or may hereafter grant to the subjects or citizens of any other State shall be extended immediately and unconditionally to the subjects or citizens of the other Contracting Party ; it being their intention that the trade and navigation of each country shall be placed, in all respects, by the other on the footing of the most-favoured nation.

Article XV

The dwellings, manufactories, warehouses and shops of the subjects of each of the Contracting Parties in the dominions and possessions of the other, and all premises appertaining thereto destined for purposes of residence or commerce shall be respected.

It shall not be allowable to proceed to make a search of, or a domiciliary visit to, such dwellings and premises, or to examine and inspect books, papers, or accounts, except under the conditions and with the form prescribed by the laws for subjects of the country.

The subjects of each of the two Contracting Parties in the dominions and possessions of the other shall have free access to the Courts of Justice for the prosecution and defence of their rights, without other conditions, restrictions, or taxes beyond those imposed on native subjects, and shall, like them, be at liberty to employ, in all causes, their advocates, attorneys or agents, from among the persons admitted to the exercise of those professions according to the laws of the country."

Protocol of November 10th, 1886

"At the moment of proceeding this day to the signature of the Treaty of Commerce and Navigation between Great Britain [p35] and Greece, the Plenipotentiaries of the two High Contracting Parties have declared as follows:

Any controversies which may arise respecting the interpretation or the execution of the present Treaty, or the consequences of any violation thereof, shall be submitted, when the means of settling them directly by amicable agreement are exhausted, to the decision of Commissions of Arbitration, and the result of such arbitration shall be binding upon both Governments.

The members of such Commissions shall be selected by the two Governments by common consent, failing which each of the Parties shall nominate an Arbitrator, or an equal number of Arbitrators, and the Arbitrators thus appointed shall select an Umpire.

The procedure of the Arbitration shall in each case be determined by the Contracting Parties, failing which the Commission of Arbitration shall be itself entitled to determine it beforehand.

The undersigned Plenipotentiaries have agreed that this Protocol shall be submitted to the two High Contracting Parties at the same time as the Treaty, and that when the Treaty is ratified, the agreements contained in the Protocol shall also equally be considered as approved, without the necessity of a further formal ratification."

Treaty of Commerce and Navigation of July 16th, 1926

"Article 1

There shall be between the territories of the two Contracting Parties reciprocal freedom of commerce and navigation.

The subjects or citizens of each of the two Contracting Parties shall have liberty freely to come, with their ships and cargoes, to all places and ports in the territories of the other to which subjects or citizens of that Contracting Party are, or may be, permitted to come, and shall enjoy the same rights, privileges, liberties, favours, immunities and exemptions in matters of commerce and navigation as are, or may be, enjoyed by subjects or citizens of that Contracting Party.

Article 3

The subjects or citizens of each of the two Contracting Parties in the territories of the other shall enjoy, in respect of their persons, their property, right's and interest, and in respect of their commerce, industry, profession, occupation, or any other matter, in every way the same treatment and legal protection as the subjects or citizens of that Party or of the most-favoured foreign country, in as far as taxes, rates, customs, imposts, fees which are substantially taxes, and other similar charges are concerned.

Article 4

The two Contracting Parties agree that in all matters relating to commerce, navigation and industry and the exercise of professions or occupations, any privileges, favour or immunity which either of the two Contracting Parties has actually granted, or may [p36]

hereafter grant, to the ships and subjects or citizens of any other foreign country shall be extended, simultaneously and unconditionally, without request and without compensation, to the ships and subjects or citizens of the other, it being their intention that the-commerce, navigation and industry of each of the two Contracting Parties shall be placed in all respects on the footing of the most-favoured nation.

Article 29

The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

The court of arbitration to which disputes shall be referred shall 'be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise."

Declaration of July 16th, 1926

"It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886, and that any differences which may arise between our two Governments as to the validity of such claims shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886, annexed to the said Treaty."

The Agents of the Parties have informed the Court that the commercial relations between the United Kingdom and Greece were regulated in accordance with the provisions of the Treaty of 1886 until the Treaty of 1926 came into force.

Although the Treaty of 1886 was denounced by Greece in 1919 and 1924, nevertheless, by successive agreements and exchanges of notes, it was continued in force from time to time; in the final exchange of notes, it was agreed that the provisional modus vivendi by which the Treaty was continued until August 31st, 1926, would lapse on the date on which the Treaty of 1926 came into force.

It is necessary for the Court at the outset to review briefly the Submissions of the Parties as they were developed during the proceedings.

In the Application of the Hellenic Government there were three requests, the first of which was that the Court should declare that it had jurisdiction; the second that the Court should declare and adjudge that the arbitral procedure referred to in the Final Protocol of the Treaty of 1886 must receive application in the present case; and the [p37] third related to the constitution of the Arbitration Commission. In the Memorial which followed the Application, the request, inter alia, was that the Court should declare and adjudge that the arbitral procedure aforesaid should receive application, which implies a previous decision that the Court had jurisdiction so to do. In the Hellenic Government's Observations and Submissions on the United Kingdom Government's Counter-Memorial, the Court was asked to dismiss the United Kingdom Government's Objection to the jurisdiction, and, adjudicating upon the competence of the Court as requested in the Application, to direct the Parties to put into execution the procedure for a Commission of Arbitration as provided for by the Protocol of 1886 (this latter Submission being an alternative to the Submission asking the Court to hold that the United Kingdom Government is bound to accept the submission of the difference to this Court acting as an arbitral tribunal). Finally, at the conclusion of the oral arguments, the Hellenic Government, after reciting inter alia that the United Kingdom Government had, through its Counsel, expressed its willingness that the Court should undertake the function of arbitration upon certain conditions, asked that the Court should hold that it had jurisdiction to deal with the merits, or, in the alternative, that it should join the Objection to the merits. These conditions, as stated by the Hellenic Government in its final Submissions, were, first, that the Court should hold that it had jurisdiction to decide the question whether the claim should be submitted to arbitration under the Protocol of 1886, and secondly, that the Court should actually decide this question in the affirmative.

The United Kingdom Government's final Submission is that the Court "has no jurisdiction to deal with the claim brought against the Government of the United Kingdom by the Hellenic Government in respect of the treatment of M. Ambatielos". The Submissions in the Counter-Memorial of the United Kingdom were more detailed. So far as they related to jurisdiction, with which alone the Court is now concerned, they were:

(i) That for certain reasons the Court has no jurisdiction

"(a) to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Government based on Article XV or any other article of the Treaty of 1886, or, (b) itself to decide on the merits of such a claim."

(ii) That for certain reasons, the Court has no jurisdiction

"(a) to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Govern-[p38]ment for denial of justice based on the general principles of international law or for unjust enrichment, or

(b) itself to decide upon the merits of such a claim."

The brief but comprehensive final Submission obviously includes the jurisdictional objections more particularly set out in the Counter-Memorial.

It is evident from the above summary that, apart from the jurisdiction of the Court on the merits,- the question of its jurisdiction to decide upon the obligation to submit the difference to arbitration is implicit in the final Submissions of both Parties.

The Hellenic Government's final Submissions refer to an offer of the United Kingdom Government (through its Counsel), upon certain conditions, that the Court itself should undertake the function of arbitration. It is true that the United Kingdom Government has made some such offer, but the conditions attached to it are not very clear. In paragraph III of the Submissions at the end of the Counter-Memorial, the United Kingdom Government stated that if, contrary to its contentions, the Court should hold that it had "jurisdiction to order arbitration of a claim by the Hellenic Govern-ment based on the Treaty of 1886 and that the Hellenic Government is not precluded by lapse of time from submitting any such claim", then the Court should substitute itself for the Commission of Arbitration under the Protocol of 1886 and itself decide all relevant issues. This condition does not appear to involve the necessity of examining whether the Ambatielos claim is in truth based on the Treaty of 1886. It implies that the United Kingdom Government's contention is that the Court has no jurisdiction even where a claim is based on the Treaty. But, during the oral arguments, Counsel said at one stage that the Court would have jurisdiction to decide whether the United Kingdom had committed a breach of the Declaration of 1926 in regard to the Ambatielos claim if (1) the Declaration was a provision of the Treaty of 1926 and (2) the Hellenic Government's claim in respect of M. Ambatielos was both a claim based on the Treaty of 1886 and a claim which that Declaration covers. A little later Counsel said:

"Before I go further, I wish to repeat what we have said in the Counter-Memorial, that if, contrary to our contentions, the Court should hold (1) that the Declaration is a provision of the Treaty of 1926, and as such is covered by Article 29, and (2) that the claim in this case is a claim to which the Declaration applies, and (3) that the claim is one which the United Kingdom is legally obliged to arbitrate, then the United Kingdom is, at any rate to [p39] this extent, in accord with its opponents, that it will, in that event, agree that this Court should itself replace the arbitral tribunal provided for in the 1886 Treaty, and should deal with the merits of the case in the same manner and to the same extent that the arbitral tribunal would have had to deal with them if it had been constituted."

These conditions seem to go beyond those in the Counter-Memorial; for they require, in effect, that the Court should not only find in favour of jurisdiction but should also actually decide that the Ambatielos claim is in fact a claim based on the Treaty of 1886 and that the United Kingdom is legally obliged to submit it to arbitration. This discrepancy throws some doubt on the existence of any unequivocal agreement between the Parties upon this matter. The Court has, however, no doubt that in the absence of a clear agreement between the Parties in this respect, the Court has no jurisdiction to go into all the merits of the present case as a commission of arbitration could do.

As regards the reference in the Counter-Memorial to the Hellenic Government being precluded by lapse of time from submitting the present claim, the Court holds that this is a point to be considered with the merits and not at the present stage.

The Court can now proceed to deal with the various arguments put forward by the United Kingdom Government in support of its Preliminary Objection to the Court's jurisdiction. Seven main points have been raised, the first two of which are:

"(1) The jurisdiction of the Court, if it exists at all, must be derived from Article 29 of the Treaty of 1926.
(2) Article 29 of the Treaty of 1926 only confers jurisdiction on the Court to deal with disputes relating to the interpretation or application of the provisions of the Treaty of 1926 itself."

Greece has not accepted the compulsory jurisdiction of the Court under Article 36 (2) of its Statute and therefore can invoke the jurisdiction of the Court only under Article 36 (1), by virtue of a special agreement or the provisions of a treaty. The Hellenic Government relies, in the present case, on Article 29 of the Treaty of 1926, read in the light of Article 37 of the Statute of the Court, which in effect provides that all references in treaties to the Permanent Court of International Justice must now be construed as references to the International Court of Justice. Article 29 of the Treaty of 1926 between Great Britain and Greece is in the following terms:

"The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or [p40] application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

The court of arbitration to which disputes shall be referred shall be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise."

It follows, therefore, that any dispute as to the interpretation or application of any of the provisions of the Treaty of 1926 is referable by either Party to this Court.

The third and fourth points raised on behalf of the United Kingdom Government are that:

"(3) The Treaty of 1926 only came into force in July 1926, and none of its provisions are applicable to events which took place or acts which were committed before that date. This is so whether or not the 1886 Treaty, which the Treaty of 1926 replaced, contained provisions similar to those of the Treaty of 1926.

(4) The acts on which the Greek Government's claim is based took place in 1922 and 1923, and therefore the provisions of the Treaty of 1926 are not applicable to them."

These points raise the question of the retroactive operation of the Treaty of 1926 and are intended to meet what was described during the hearings as "the similar clauses theory", advanced on behalf of the Hellenic Government. The theory is that where in the 1926 Treaty there are substantive provisions similar to substantive provisions of the 1886 Treaty, then under Article 29 of the 1926 Treaty this Court can adjudicate upon the validity of a claim based on an alleged breach of any of these similar provisions, even if the alleged breach took place wholly before the new treaty came into force. The Court cannot accept this theory for the following reasons:

(i) To accept this theory would mean giving retroactive effect to Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty, which must mean all the provisions of the Treaty, shall come into force immediately upon ratification. Such a conclusion might have been rebutted if there had been any special clause or any special object necessitating retroactive interpretation. There is no such clause or object in the present case. It is therefore impossible to hold that any of its provisions must be deemed to have been in force earlier.

It was contended on behalf of the Hellenic Government that the arbitral procedure stipulated in Article 29 of the Treaty of 1926 differed from that in the Protocol of 1886 only in respect of the tribunal provided for arbitration: under the Treaty of 1926 the arbitral tribunal was to be the Permanent Court of International [p41] Justice, while under the Protocol of 1886 the tribunal was to be an ad hoc commission of arbitration. This, it was argued, was a procedural variation and in matters of procedure, at least in English law, the presumption as to procedural statutes is in favour of retroactive application. Now, whatever may be the position in national law in various countries of the world—a matter which the Court has not thought it necessary to investigate—and without examining whether questions of procedure cover questions of jurisdiction, the Court observes that, in any event, the language of Article 32 of the Treaty of 1926 precludes any retroactive effect being given to selected provisions of that Treaty.

(ii) Accompanying the Treaty of 1926—whether as a part thereof or not is a question which will be dealt with later—was a Declaration which provided, in effect, that any differences which might arise as to the validity of claims based on the Treaty of 1886 should be referred, at the request of either Government, to arbitration under the Protocol annexed to the Treaty of 1886. That was the understanding between the Parties. The language of the Declaration makes no distinction between claims based on one class of provisions of the 1886 Treaty and those based on another class; they are all placed on the same footing and differences relating to their validity are referable to arbitration under the Protocol of 1886. To argue that differences relating to claims based on those of the provisions of the earlier Treaty, which were similar to provisions of the later Treaty, were intended to be referred to arbitration in accordance with Article 29 of the later Treaty, while differences relating to other claims based on the earlier Treaty were meant to be arbitrated under the Protocol of the earlier Treaty, introduces a distinction for which the Court sees no justification in the plain language of the Declaration.

The fifth point raised on behalf of the United Kingdom Government is that:

"The Declaration which was signed at the same time as the Treaty of 1926 was not a part of that Treaty and the provisions of that Declaration are not provisions of that Treaty within the meaning of Article 29."

Both Parties agree that this is the most important issue in the case. In support of the contention that the Declaration is not a part of the Treaty, it is said that the Declaration was signed separately from the Treaty proper, though by the same signatories and on the same day. It is also pointed out that the Declaration refers to the Treaty not as "this Treaty" or "the present Treaty"— which would have been the proper mode of reference if the Declaration had been regarded as part of the Treaty—but as "the Treaty [p42] .... of to-day's date", thereby indicating that the Treaty had already been completed and signed. Moreover, it is urged, the Declaration does not say that it is to be regarded as a part of the Treaty, presenting in this respect a marked contrast to one of the Declarations annexed to the Greco-Italian Commercial Treaty of November 24th, 1926, which is followed by two Declarations, one expressed to be an integral part of the Treaty and the other not so expressed, the latter being almost identical in form and purpose with the 1926 Anglo-Greek Declaration with which the Court is now concerned.

On the other hand, it is to be noted that the Plenipotentiaries included the Treaty and the Customs Schedule (which is unquestionably a part of the Treaty) and the Declaration in a single document of 44 pages, the Declaration being on page 44. Again, shortly after the exchange of ratifications, the Government of the United Kingdom issued Treaty Series No. 2 (1927), a single document entitled "Treaty of Commerce and Navigation between the United Kingdom and Greece and accompanying Declaration", and presented it to Parliament. Furthermore, the British Foreign Office and the Charge d'Affaires of the Hellenic Republic at Berne communicated official texts to the League of Nations at Geneva for registration, which led to their inclusion in the League of Nations Treaty Series under a single number, as "No. 1425. Treaty of Commerce and Navigation between the United Kingdom and Greece and accompanying Declaration signed at London, July 16th, 1926."

Cogent evidence as to what both Parties intended is furnished by the instruments of ratification exchanged between the United Kingdom and Greece. The instrument of ratification by Greece was in the following terms : "We declare that the Treaty of Commerce and Navigation having been signed in London on the 16th July of this year between Greece and Great Britain with annexed Customs Schedule and Declaration, the texts of which follow : [Here follow the Greek and English texts of the Treaty, Schedule and Declaration.] We accept, approve and ratify the Treaty, the Customs Schedule and the Declaration in all their provisions, promising to faithfully observe and not to violate the same, or to permit their violation by any other person whatsoever", etc.

Thus, this instrument made no distinction between the Treaty, on the one hand, and the Customs Schedule which is indisputably a part of the Treaty, and the Declaration annexed to the Treaty, on the other. It is clear, therefore, that Greece treated the Declaration as a part of the Treaty.[p43]

The United Kingdom's instrument of ratification is even more explicit. It reads: "GEORGE, by the Grace of God .... greeting. Whereas a Treaty between Us and Our good friend the President of the Hellenic Republic, relative to commerce and navigation, was concluded and signed at London on the sixteenth day of July in the year of Our Lord one thousand nine hundred and twenty-six by the Plenipotentiaries of Us and of Our said good friend duly and respectively authorized for that purpose, which Treaty is, word for word, as follows: [here follow the English and Greek texts of the Treaty, Schedule and Declaration.]

"We, having seen and considered the Treaty aforesaid, have approved, accepted and confirmed the same in all and every one of its articles and clauses", etc.

From the words "which Treaty is, word for word, as follows" and the text that follows the words, it is clear that the United Kingdom also regarded the Declaration, as well as the Customs Schedule, as included in the Treaty. The ratification of a treaty which provides for ratification, as does the Treaty of 1926, is an indispensable condition for bringing it into operation. It is not, therefore, a mere formal act, but an act of vital importance. When the Government of the United Kingdom speaks of the Treaty in its own instrument of ratification, as being "word for word as follows" and includes the Declaration in the text that follows, it is not possible for the Court to hold that the Declaration is not included in the Treaty.

The nature of the Declaration also points to the same conclusion. It records an understanding arrived at by the Parties before the Treaty of 1926 was signed as to what the Treaty, or as Counsel for the Government of the United Kingdom preferred to put it, the replacement of the Treaty of 1886 by the Treaty of 1926, would not prejudice. This is clear from the opening words "It is well understood that the Treaty .... of to-day's date, does not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886." From the series of instruments which from time to time continued the Treaty of 1886 in force after its initial denunciation by Greece, it is evident that ultimately it was the coming into force of the Treaty of 1926 that finally terminated the operation of the Treaty of 1886. But for the Declaration, Article 32 of the Treaty of 1926, which brought that Treaty into force upon ratification, might, in the absence of any saving clause, have been regarded as putting the Treaty into full operation so as completely to wipe out the Treaty of 1886 and all its provisions, including its remedial provisions, and any claims based thereon. Indeed, the United Kingdom Government, before proceeding to the signature of the Treaty of 1926, asked for an assurance that the Hellenic Government would not regard "the conclusion of the Treaty" as prejudicing certain claims of British subjects based on the older Treaty. [p44]

The intention of the Declaration was to prevent the new Treaty from being interpreted as coming into full force in this sweeping manner and thus prejudicing claims based on the older Treaty or the remedies provided for them. It follows that, for the proper interpretation or application of the provisions of the Treaty of 1926, some such words as "Save as provided in the Declaration annexed to this Treaty" have to be read into Article 32 before the words "It shall come into force". Thus, the provisions of the Declaration are in the nature of an interpretation clause, and, as such, should be regarded as an integral part of the Treaty, even if this was not stated in terms.

For these reasons, the Court holds that either expressly (by virtue of the United Kingdom's own instrument of ratification) or by necessary implication (from the very nature of the Declaration) the provisions of the Declaration are provisions of the Treaty within the meaning of Article 29. Consequently, this Court has jurisdiction to decide any dispute as to the interpretation or application of the Declaration and, in a proper case, to adjudge that there should be a reference to a Commission of Arbitration. Any differences as to the validity of the claims involved will, however, have to be arbitrated, as provided in the Declaration itself, by the Commission.

It may seem at first sight that there is here a possibility of a conflict between a decision of the Court finding that there is an obligation to submit a difference to a Commission of Arbitration and an eventual decision by the Commission. There is in reality no such possibility.

The Court would decide whether there is a difference between the Parties within the meaning of the Declaration of 1926. Should the Court find that there is such a difference, the Commission of Arbitration would decide on the merits of the difference.

It may be contended that because a special provision overrides a general provision, the Declaration should override Article 29 of the Treaty of 1926 and, as it lays down a special arbitral procedure, it excludes the jurisdiction of the Court under Article 29. While it is true that the Declaration excludes the Court from functioning as the Commission of Arbitration, it is equally true that it lies with the Court to decide precisely whether there should be a reference to a Commission of Arbitration.

The sixth argument of the United Kingdom Government is that:

"The claim which the Greek Government is making on behalf of M. Ambatielos in so far as it is based on any provision of the Treaty of 1886, is not a claim covered by the Declaration of 1926, [p45] because that Declaration only covered claims which had been formulated under that Treaty before the Declaration was signed, and the Greek Government did not formulate any legal claim in respect of M. Ambatielos until 1933, nor indeed any legal claim under the Treaty of 1886 until 1939."

The phrase used in the Declaration is "claims based on the provisions of the Anglo-Greek Commercial Treaty of 1886". There is no reference whatever in the Declaration to the date of formulation of the claims; the only requirement is that they should be based on the Treaty of 1886. Counsel for the United Kingdom attempted to support his contention by referring to the negotiations which led to the signature of the Declaration. The records of the negotiations, however, do not support the contention. They show that although the Hellenic Government originally suggested a draft of the Declaration referring to "anterior claims eventually deriving from the Anglo-Greek Commercial Treaty of 1886", this draft was ultimately not accepted, and both Parties adopted, instead, the text of the Declaration as it now appears, omitting the word anterior. In any case where, as here, the text to be interpreted is clear, there is no occasion to resort to preparatory work.

If the United Kingdom Government's interpretation were accepted, claims based on the Treaty of 1886, but brought after the conclusion of the Treaty of 1926 would be left without solution. They would not be subject to arbitration under either Treaty, although the provision on whose breach the claim was based might appear in both and might thus have been in force without a break since 1886. The Court cannot accept an interpretation which would have a result obviously contrary to the language of the Declaration and to the continuous will of both Parties to submit all differences to arbitration of one kind or another.

There now remains the final argument that "the Treaty of 1886 contains no provisions incorporating in the Treaty the general principles of international law with regard to the treatment of foreigners in courts of justice or otherwise and in consequence it cannot be said that the alleged denial of justice in breach of the general principles of international law is a breach of the Treaty of 1886, merely because it is a breach of the general principles of international law".

The point raised here has not yet been fully argued by the Parties, and cannot, therefore, be decided at this stage. [p46]

For these reasons,
The Court,

adjudicating on the Preliminary Objection filed by the Government of the United Kingdom of Great Britain and Northern Ireland to the Application of the Royal Hellenic Government,

by thirteen votes to two,

finds that it is without jurisdiction to decide on the merits of the Ambatielos claim;

by ten votes to five,

finds that it has jurisdiction to decide whether the United Kingdom is under an obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, in so far as this claim is based on the Treaty of 1886;

decides that the time-limits for the filing of a Reply and a Rejoinder shall be fixed by subsequent Order.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this first day of July, one thousand nine hundred and fifty-two, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Royal Hellenic Government and to the Government of the United Kingdom of Great Britain and Northern Ireland, respectively.

(Signed) J. G. Guerrero,
Vice-President.

(Signed) E. Hambro,
Registrar. [p47]


Judge Levi Carneiro and M. Spiropoulos, Judge ad hoc, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment of the Court statements of their individual opinions.

Judge Alvarez declares that there are in the present case sufficient grounds for holding that the Court has jurisdiction to deal with the merits of the Ambatielos claim.

The President Sir Arnold McNair, Judges Basdevant, Zoricic, Klaestad and Hsu Mo, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment statements of their dissenting opinions.

(Initialled) J. G. G.

(Initialled) E. H. [p48]


INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO

[Translation]

Though I have voted with the majority on nearly all the questions and have accepted the conclusions of the Judgment, I nevertheless venture to draw attention to some secondary differences of view, and to refer to certain considerations which have influenced my attitude in regard to questions which have been raised, but which have not been dealt with in the Judgment.

2. It has been decided not to join the Objection to the merits, in conformity with Article 62, paragraph 5, of the Rules of Court, as had been requested by one of the Parties.

I consider that such a joinder should only be made when it is absolutely necessary. However, it often happens that, although no joinder is made, the decision on the jurisdiction involves a summary, superficial, or prima facie consideration of certain questions pertaining to the merits. Such an examination is mainly confined to the legal issues, without dealing with the facts that are in dispute, and the decision on the jurisdiction may then be founded on considerations which touch upon these questions, without dealing exhaustively with them and without prejudging them.

3. In my opinion, in order to establish the Court's jurisdiction in the present case, it should have been decided that the Ambatielos claim is "based" on the Treaty of November 10th, 1886—that is to say, that it has given rise, in the words of the Protocol of the same date, to a controversy "respecting the interpretation or the execution" of the Treaty.

The United Kingdom Counter-Memorial has correctly indicated the line of argument by which the Hellenic Government justifies the Court's jurisdiction:

“…it contends that the treatment accorded to the claimant gave rise to a claim against the United Kingdom under Article XV of the Treaty of 1886; that, since the United Kingdom rejects this claim, it should be submitted to arbitration under the Protocol annexed to that Treaty and continued in force after the termination of the Treaty by the Declaration made on the date of signature of the Treaty of 1926 ; and finally that the refusal of the United Kingdom to go to arbitration raises a dispute as to the application of the Declaration which the Court has jurisdiction to decide under Article 29 of the Treaty of 1926" (paragraph 10, British Counter-Memorial) (my italics).

Certainly, the Hellenic Government's argument was correctly summarized in that passage. The Greek Memorial expressly contended that there had been a violation of Article XV, para-[p49]-graph 3, of the Treaty of 1886, consisting of a denial of justice, and of Article X of the said Treaty, consisting of inequality of treatment (Memorial, paragraphs 14 and 22).

The invocation of these provisions of the Treaty seems to be relevant. Without passing on the facts stated in the Memorial, or recognizing the correctness of these allegations, it would not be possible to say whether the invocation of the clauses of the Treaty of 1886 was justified. The Court cannot do so at the present stage of the proceedings. However, this invocation must, prima facie, be regarded as acceptable. That is both sufficient and necessary to enable the Court's jurisdiction to be asserted. If the claim manifestly went beyond the terms of the Treaty of 1886, the Court would have no jurisdiction. For example, if the claim related to facts prior to the Treaty of 1886, the Court's lack of jurisdiction would have to be at once admitted; the invocation of this Treaty would—even prima facie—appear to be ill-founded. In fact, what has to be decided is simply whether the claim is or is not admitted by the Treaty.

4. In the present case, recognition of the fact that the claim is based on the Treaty of 1886 follows from the declarations of the Parties.

In the Counter-Memorial (paragraph 11), after the summary of the Hellenic Government's reasoning, which I have quoted above, the-Agent for the United Kingdom Government submitted that this reasoning ought to be rejected because:

"(a) the Declaration does not form part of the Treaty of 1926 and Article 29 of the Treaty is therefore not applicable to it, and because

(b) the Declaration was only intended to apply to claims brought before the date of its signature (16th July 1926)."

The British Government did not reject the reasoning on the ground that the claim was not based on the Treaty of 1886, although it disputed the denial of justice and the inequality of treatment. On the contrary, it admitted that the claim was, prima facie, based on the Treaty of 1886.

Its first submission was that the Court

"has no jurisdiction to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Government based on Article XV or any other article of the Treaty of 1886".

Subsequently, during the oral proceedings before the Court, the recognition of this fact became quite clear. Counsel for the United Kingdom, at the hearing on May 15th, stated the conditions which he regarded as necessary for the admission of the Court's jurisdiction: (1) that the Declaration was a provision of [p50] the Treaty of 1926 ; (2) that the Greek claim was both "based on the Treaty of 1886" and covered by the Declaration (Oral Argument, page 16). He sought to show that the Declaration did not form part of the Treaty of 1926, and that it did not cover the claim; but he did not attempt to show that the claim was not based on the Treaty of 1886.

In conclusion, the Greek Counsel said:

“…even our opponents agreed that our legal bases included at least one which they recognized as pertinent: that was Article XV, paragraph 3, of the Treaty of 1886....".
I think that this fact should have been recognized. The Court's jurisdiction results from the fact that the dispute is within the framework of the Declaration of 1926: the claim is "based" on the Treaty of 1886.

5. It might perhaps have been possible to anticipate the final decision of this case by at once affirming—or denying—the obligation of the United Kingdom Government to submit to arbitration its dispute with the Hellenic Government in regard to M. Ambatielos's claim.

The fullness of the arguments appeared to allow of such a decision—and I myself was in favour of giving it. I now recognize that the present Judgment deals solely with the Objection to the jurisdiction. In presenting it, the British Government very clearly separated the question of jurisdiction from the question of the merits. In regard to the latter, it said that the claim of the Hellenic Government was barred by reason of the delay in its submission, and that the Court should, in accordance with the Hellenic Government's proposal, substitute itself for the Arbitration Commission, etc. On the preliminary question, what was alleged was the Court's lack of jurisdiction to order the British Government to submit to arbitration a claim by the Hellenic Government, etc.

The present decision of the Court, in its Judgment on the Preliminary Objection, is limited to an affirmation of its competence to give the ruling referred to.

Subsequently, in the next stage of the procedure, the Hellenic Government's request will be adjudicated upon. Then, and only then, will the Court be in a position to adjudge and declare, as requested by the Hellenic Government:

"that the United Kingdom Government is under an obligation to refer its present dispute with the Hellenic Government to arbitration....".

It is true that the Hellenic Government itself, in its "Observations and Submissions" departed from this attitude and asked the Court [p51]

"to hold that the United Kingdom Government is bound to accept the submission to the International Court of Justice, sitting as an arbitral tribunal, of the dispute now existing between that Government and the Hellenic Government, and accordingly to fix time-limits for the filing by the Parties of the Reply and the Rejoinder dealing with the merits of the dispute".

A modification resulted from the acceptance by Counsel of the two Parties, during the oral proceedings, of the principle that the Court should exercise the functions of the Commission of Arbitration referred to in the Protocol of 1886. This proposal, which was proposed by Counsel for the Hellenic Government, was accepted by the United Kingdom Counsel, subject to the condition that the Court should first hold that it was competent. It has been very correctly decided in the Judgment that the Court has not thereby been invested with jurisdiction to decide on the merits.

In my view, it should be declared expressly that the Court could assume the function of the Arbitral Commission as a result of a Special Agreement between the two Governments. The declarations of the Agents, or even of Counsel, in the course of the proceedings, may suffice to establish the competence of the Court, by a prorogation of jurisdiction. However, in the present case, the Court holds that competence belongs to the Commission of Arbitration provided for in the Protocol of 1886. In my opinion, the Court could not agree to any derogation from the clause contained in this inter-governmental agreement on the basis of the mere declarations of Counsel; nor could it admit that jurisdiction to adjudicate on the dispute has been transferred to it by virtue of such declarations.

In short, in the submission which I have quoted from its "Observations", the Greek Government envisages, in addition to this proposal regarding the Court's competence—which is unac-ceptable—the continuation of the proceedings by a Reply and a Rejoinder. This is required by Articles 41, paragraph 2, and 62, paragraph 5, of the Rules of Court, just as Articles 47 et sqq. call for further oral argument.

In this second phase, the question whether the claim is based on the Declaration of 1926 will be fully examined. One of the points that will then have to be decided is that raised by Counsel for the United Kingdom in his sixth argument, where he contended that the alleged denial of justice committed in violation of the general principles of international law did not constitute a violation of the Treaty of 1886, because this Treaty contained no provision to that effect. I agree that this question ought not to be decided at the present stage of the proceedings, but not on the ground that it has not yet been fully argued by the Parties. That omission by the Parties might be interpreted by the Court; but I consider that it would not be a ground for failing to decide this question, [p52] if it were opportune to do so. In fact, it is because this question pertains to the merits of the case that the Court cannot decide it at this time. That is all the more true because it is not necessary to consider this question in order to assert the Court's jurisdiction.

There will still be a third phase if the Parties agree, only after the end of the second phase, to confer the arbitral function upon the Court.

The Court's concern not to delay the proceedings cannot be allowed to prevent this prolongation of the case if the Parties do not find means of avoiding it.

6. The Court's future decision on the merits, being confined to a decision on the question whether the Ambatielos claim falls within the framework of the Declaration of 1926, there is no reason to fear that the judgment of the Commission of Arbitration would conflict with such a decision. The only point which the Court will have to decide will be the competence of that Commission. It is clear that even the Commission itself could not then declare that it lacks jurisdiction. If the Court should hold the Commission competent, it will be for it to decide the sole question of the validity of the Ambatielos claim. If the Commission, its competence having thus been established by the Court, refuses to decide this question, the Court will have to-order a new commission to be constituted. Something has been said of the autonomy of the arbitral commissions; in my view, their autonomy is limited by the instrument which institutes them—and in the present case that instrument is constituted by the Judgment of this Court.
While not exceeding the limits of a decision as to its competence, the Court should not reduce its decision to a doctrinal, abstract or theoretical assertion; it must necessarily relate its decision to the specific case. The Court's jurisdiction is derived from treaties, and from the features of the particular case before it. And so the Court will definitively determine the extent of its jurisdiction and that of any other organ which has to act in the same case.

7. The most important of the questions submitted is, as has been recognized in the Judgment, whether the Declaration annexed to the Treaty of July 16th, 1926, is a part of that Treaty. The Court's reasons in this connection are amply sufficient.

There is, however, I suppose, some doctrinal interest in emphasizing the juridical nature of this Declaration.

It is—it must be so described—according to a current expression, an "interpretative declaration". Declarations of this sort are often made by one of the parties concerned to define the attitude adopted towards a given treaty, a method of executing [p53] it (Fenwick, International Law, p. 438; Oppenheim, International Law, 6th edit., Vol. I, p. 787).

In the British Year Book of International Law (1948, pp. 201202), Mr. A. B. Lyons, referring to a declaration by the French Government on the most-favoured-nation clause, observed that the competent court had "held that the interpretative declaration must be read with and deemed to form part of the text of the treaty and was binding on the courts".

The Declaration of 1926, which has been referred to, was signed by the same representatives of the two Governments who were signatories of the Treaty of the same date. It has the significance of an authentic interpretation, embodied in the Treaty itself. The Treaty consists of three parts—Articles, Customs Schedule and Declaration.

Marcel Sibert has said that a declaration removes various uncertainties from the principles which are considered as the expression of the international law in force. Thus, the Declaration embodied in the Treaty of 1926 removes some uncertainties in regard to the application of that Treaty and of the earlier treaty which it replaced.

It is true that the Declaration relates to the Treaty of 1886, in that it saves claims—which have been or may yet be presented— based on the provisions of that Treaty, and ensures the continuity of their remedies in certain cases. Now, this safeguard only became necessary because a new treaty made its appearance in 1926. Thus, the Declaration restricted the application of the Treaty of 1926 by providing that it should not apply to the cases it mentioned. In virtue of that fact, it could be inserted in the new treaty, and it forms an integral part thereof; it was so regarded by the two Governments in their instruments of ratification.

From an intellectual, ideological and juridical point of view, the Declaration forms part of the Treaty of 1926.

8. There is another consideration which supports that conclusion: if it were not adopted, there would be no pre-established procedure for the settlement of a dispute between the two Governments on the interpretation and application of the Declaration.

But such a situation must be avoided, more especially in the case of two friendhly nations—like Greece and the United Kingdom—which are united by their love of democracy and of peace: they would not fail to provide for a friendly settlement of disputes which might arise in connection with their two successive commercial treaties. I could never believe that the United Kingdom and Greece, having concluded two treaties, forty years apart, in the operation of which there was no interruption, motivated by the same solicitude for the safeguarding and assisting of their respective nationals in the territory of the other State, and having expressly provided, in two instruments, for the friendly settlement [p54] of their disputes (Protocol annexed to the Treaty of 1886, Article 29 of the Treaty of 1926), should find themselves unable to agree on the application of one of these Treaties, without there being any solution for such disagreement, either by arbitration or by recourse to some organ of international justice.

9. I consider such a situation all the more strange and unacceptable because the progress of international law, in its efforts to prevent war and promote international co-operation, is above all directed to the pacific settlement of disputes.

The interpretation and application of treaties constitute the special domain of arbitration for the very reason that they give rise to purely juridical questions. This was declared by the Second Hague Conference in 1907 and in Article 13 of the Covenant of the League of Nations and now, once more, in Article 36 of the Court's Statute.

If it is held that the Declaration of the 16th July, 1926, forms part of the Treaty signed on that day, the difference regarding the interpretation or application of that Declaration must be settled by the International Court of Justice, in accordance with Article 29 of the said Treaty in conjunction with Article 37 of the Statute of the Court.

10. In regard to the retroactive application of procedural provisions, and provisions relating to jurisdiction—which the Court has rejected—I venture to add that, in the sphere of international law, such an application can only be allowed when it is expressly provided for. Even when the organ which was formerly competent has been abolished, its powers cannot be regarded as automatically transferred to the new organ which replaces it. Thus, in order that this Court might inherit the powers of the Permanent Court of International Justice, it was necessary that this should be expressly laid down in Article 37 of the Statute. But, in the Treaty of 1926, there is no provision abolishing the Arbitral Commissions provided for in the Treaty of 1886. On the contrary, there is nothing to prevent these Commissions from being constituted, should that be necessary. From another point of view, the Declaration annexed to the Treaty of 1926 expressly maintains the means of settlement by arbitration, in accordance with the Protocol annexed to the Treaty of 1886, of disputes based on that Treaty; Article 29 of the Treaty of 1926 limits the powers of the International Court to the settlement of disputes as to the interpretation or application of any of the provisions of the new treaty. The retroactive application of Article 29 would not be justified and has been expressly excluded.

(Signed) Levi Carneiro. [p55]


INDIVIDUAL OPINION OF M. SPIROPOULOS

[ Translation]

Though I am one of the majority, I am unable, to my great regret, to agree with it on all the points considered in and settled by the Judgment. I will confine myself, in what follows, to stating the points on which I disagree with the wording of paragraph 2 of the operative part thereof, in which the Court establishes its jurisdiction to adjudicate on the merits.

The drafting of paragraph 2 of the operative part would seem to impose upon the applicant State the duty of establishing that the Ambatielos claim "is based on a provision of the Treaty of 1886".

I differ from the view of the majority for the following reasons: The Declaration annexed to the Treaty of 1926 provides that differences between the Parties, as to the validity of claims based on the provisions of the Treaty of 1886, must be referred to arbitration as provided for by the Protocol of 1886.

This Protocol creates for the Parties concerned, in the event of differences between them, an obligation to nominate their arbitrators for the purpose of setting up a Commission of Arbitration as provided for by the Protocol of 1886. This is a case of compulsory arbitration.

If the United Kingdom had nominated an Arbitrator, as requested by the Hellenic Government, it would be for the Commission of Arbitration to decide as to the validity of the Ambatielos claim. And this Commission would be unable to consider the Ambatielos claim as valid unless, in fact, it were based on the Treaty of 1886.

But, in questions of arbitration, it is at the present time well recognized that if one of the parties should, for any reason, consider that the arbitral tribunal lacks jurisdiction to deal with the dispute, the question whether it in fact has jurisdiction is one that cannot be decided, as an exercise of sovereignty, by the party raising the objection to the jurisdiction, but it must be decided by the arbitral tribunal itself. The tribunal which adjudicates on the case must also adjudicate on the objection. This is a point on which, at the present time, no one can have any doubt.

If this principle is applied to the present case, it must follow that, if the United Kingdom Government had accepted recourse to arbitration as proposed by the Hellenic Government, it would have been for the Commission of Arbitration instituted under the Protocol of 1886 to decide whether the Ambatielos claim was, or was not, based on the provisions of the Treaty of 1886. [p56]

In the light of these observations, the Court ought not to require that the Hellenic Government should establish that the Ambatielos claim "is based on a provision of the Treaty of 1886", since the obligation of the United Kingdom to accept arbitration is independent of the question whether that claim is, in fact, based on the Treaty of 1886. This obligation would exist even if the claim were not, in fact, based on the Treaty in question. It is a different thing that—as has already been said—the Commission of Arbitration would only have been able to recognize the Ambatielos claim as valid to the extent that it was, in fact, based on the Treaty of 1886. And it was to secure a decision on the United Kingdom's obligation to accept arbitration that the Hellenic Government seised the Court (see the Hellenic Application and subsequent submissions).

Moreover, since the Court is at present called upon to decide only the objection to the jurisdiction raised by the United Kingdom, it cannot, for procedural reasons, at the present time pass upon the validity of the Hellenic claim that it should hold that the United Kingdom is under an obligation to accept arbitration, a decision necessarily pertaining to the merits. From a procedural point of view the Court cannot give a decision upon the substance of the Greek claim until it has held that it has jurisdiction to do so.

Since, however, in my opinion, the Court is not called on to enquire whether the Ambatielos claim "is based on the provisions of the Treaty of 1886", it may be asked whether, in deciding on the merits of this Hellenic claim (that is to say, on the question whether the United Kingdom is under an obligation to accept arbitration), the Court should confine itself, after hearing the Parties, to referring them to the arbitration provided for by the Protocol of 1886, without being able to consider any other matter.

In answering this question it is necessary to bear in mind that, when a State has bound itself by a compulsory arbitration clause— and the Protocol of 1886 is an example of such a provision—that State cannot, in principle, have any ground for refusing an offer of recourse to arbitration. It is only in quite exceptional cases, where the invitation to resort to arbitration'is manifestly an abuse on the part of the State requesting it, that recourse to arbitration is not compulsory. An example of such abuse would be a case in which one of the parties demanded the setting-up of the arbitral tribunal where no real dispute existed. In such a case it is indeed necessary to admit the other party's right to refuse to nominate its arbitrator. Such an allegation, if made, could of course be considered by the Court, when deciding upon the validity of the claim of the Hellenic Government in this case. [p57]

In conclusion, the Court, in my opinion, might well have limited itself to a finding that it has jurisdiction to decide whether the United Kingdom is under an obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim without adding the words "in so far as this claim is based on the Treaty of 1886", since those words would appear to impose upon the applicant State the duty of establishing that the claim in question is, in fact, based on a provision of the Treaty of 1886.

(Signed) Spiropoulos. [p58]


DISSENTING OPINION OF PRESIDENT McNAIR

I have voted in favour of the first rinding of the Court, namely, "that it is without jurisdiction to decide on the merits of the Ambatielos claim", though I go further than that and consider that the Court has no jurisdiction at all in this case. I regret that I am not able to concur in the second finding of the Court.

The question before the Court is whether or not the Court has jurisdiction to deal with a certain claim made upon the United Kingdom by the Hellenic Government on behalf of one of its nationals, M. Ambatielos. The United Kingdom Government has accepted the compulsory jurisdiction of this Court by making the Declaration specified in Article 36 of the Court's Statute, but the Hellenic Government has not done so, with the result that the Court is not invested with compulsory jurisdiction under this Article. The Hellenic Government, however, claims that Article 2q of the Anglo-Greek Commercial Treaty of 1926, coupled with Article 37 of the Statute of the Court which substituted this Court for the Permanent Court of International Justice, confers compulsory jurisdiction in this case.

Article 29 of the Treaty above mentioned is as follows:

"The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

The court of arbitration to which disputes shall be referred shall be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise."

The Treaty is accompanied by the following Declaration:

"It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of r886, and that any differences which may arise between our two Governments as to the validity of such claims shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886, annexed to the said Treaty."

[p59]
The claim is said to be based upon an Anglo-Greek Commercial Treaty of 1886 and thus to fall within the scope of this Declaration.

Both in the British Treaty Series, 1927, and in the League of Nations Treaty Series, Vol. LXI, p. 16, the title is "Treaty of Commerce and Navigation between the United Kingdom and Greece and accompanying Declaration signed at London, July 16th, 1926." The Treaty is followed by a Schedule and, below the Schedule, by the Declaration quoted above. The Schedule is specifically incorporated in the Treaty by Article 8 of the Treaty which contains the following sentence:
"The articles enumerated in the schedule to this Treaty, produced or manufactured in Great Britain and Northern Ireland, shall not on importation into Greece be subjected to higher duties than those specified in the schedule."

There is no such specific incorporation of the Declaration in the Treaty.

The Treaty ends as follows:

"In the event of doubt hereafter arising as to the proper interpretation of the English or Greek text, the English text shall be considered authoritative.
In witness whereof the respective plenipotentiaries have signed the present Treaty and have affixed thereto their seals.
Done in duplicate at London in the English and Greek languages this 16th day of July 1926.
Austen Chamberlain.
D. Caclamanos.
A. Vouros."

The accompanying Declaration ends as follows:

"Done at London the 16th July, 1926.
Austen Chamberlain
D. Caclamanos.
A. Vouros."

The Schedule, for obvious reasons, contains no date and no signatures.

***

Three questions arise in regard to ratification.

(a) Article 32 of the Treaty of 1926 provides that "The present Treaty shall be ratified...." There is no corresponding provision in the accompanying Declaration. In fact, what appears to have happened is that a printed text of the Treaty, Schedule and accompanying Declaration was sandwiched into the middle of the traditional standard printed form of the United Kingdom [p60] Instrument of Ratification (for a copy see Satow, Guide to Diplomatic Practice, 3rd ed., pp. 408, 409), that is to say, between the formal introductory part and the formal concluding part, and then the Instrument was tied up with ribbon, dated, sealed, and exchanged for the Greek Instrument of Ratification.

There has been some controversy on the question whether or not the Declaration was also ratified by the United Kingdom, though, according to the practice of the United Kingdom, the Declaration did not require ratification, and the United Kingdom Government docs not contend that the Declaration is not binding upon it. It appears that owing to the destruction of the Greek archives during the recent war, the United Kingdom Instrument of Ratification could not be found in Athens. The explanation given to the Court by the United Kingdom Agent is as follows:

"I have, however, found in the Foreign Office records a copy of the United Kingdom's instrument of ratification, which was printed, and from this it appears that the United Kingdom did not ratify the Declaration. A certified photostat copy of this document is enclosed herewith. It is true that the Declaration is printed on the back of the copy of the Treaty contained in the ratification, but this is only because the printed edition of the Treaty prepared for signature (which had the Declaration printed on the back) was also used, as is customary, for the instrument of ratification, and it should not be inferred that the ratifi-cation was intended to cover the Declaration as well as the Treaty."

Nevertheless, I consider that the fact that the United Kingdom Government handed to the Hellenic Government, by way of exchange, an Instrument of Ratification duly sealed and embodying the text of the Treaty, the Schedule and the accompanying Declaration, makes it necessary to hold that the Declaration was ratified at the same time, and by the same instrument, as the Treaty with its Schedule.

(b) There arises a different question, namely, whether a global ratification has the effect of making all the documents comprised in it parts of the Treaty which was the main subject-matter of the ratification, unless they would be so incorporated by virtue of the intention of the Parties, express or implied. My answer to this question is in the negative. The question whether documents accompanying a treaty—by whatever name they may be called, Declarations, Protocols, Additional Articles, Exchanges of Letters, etc.—are incorporated in the treaty or not, depends upon the intention of the contracting Parties. The intention to incorporate such a document in a treaty is frequently evidenced expressly by a written stipulation to the effect that it shall form an integral part of the treaty; or, alternatively, it may be implied from the juridical nature of the document and its relation to the treaty. [p61]

Of an express stipulation there are countless illustrations, old and recent ; for instance, in the Jay Treaty of 1794 between the United States of America and Great Britain (Miller, Treaties of the United States of America, Vol. 2, p. 272), where President Washington did "hereby declare that the said Treaty, and the said Additional Article form together one Instrument and are a Treaty between the United States of America and His Britannic Majesty" ; or the Greco-Italian Commercial Convention of 24th November, 1926 (League of Nations Treaty Series, Vol. 63, No. 1480), where one of the two accompanying Declarations is expressed to be an integral part of the Treaty, while the other (which, incidentally, bears some resemblance to the Declaration of 1926 now under consideration) contains no such term ; or, again, Article 92 of the Charter of the United Nations, which states that the "annexed Statute" of this Court "forms an integral part of the present Charter". (Notice, incidentally, "the present Charter", not-"the Charter of the United Nations signed at San Francisco the 26th day of June, 1945".) I shall deal later with the question whether the incorporation of the Declaration in the Treaty of 1926 can be implied.

(c) It is also suggested that it must be inferred from the expression "which treaty is, word for word, as follows", occurring in the United Kingdom's Instrument of Ratification, that all the documents (Treaty, Schedule and Declaration) which follow these words must be regarded as forming one treaty. If the history of this phrase is examined, I do not consider that it can sustain this argument. Either in this form or in some such phrase as "duquel la teneur de mot à mot s'ensuit", in Latin, French, English or German, this traditional formula has been in use in treaties and other public documents for at least 600 years. (See, for instance, Dumont, Corps universel diplomatique du Droit des Gens et Recueil des Traités, Vol. 2, pp. 22-26, where the formula, occurs in two Acts of Cession and Renunciation between the King of France and the King of England dated 1360, "de quelles Lettres la teneur de mot à mot s'ensuit", or "de mot en mot", and many similar illustrations throughout the volumes of Dumont; see also a Russian Instrument of Ratification of 1739 in Mervyn Jones, Full Powers and Ratification, p. 167, "desquels la teneur suit, transcrite de mot à mot"; and President Washington's ratification of the Jay Treaty of 1794, "which Treaty is word for word as follows; to wit", in U.S. Senate Document No. 26 of 1919, "Ratification of Treaties, Methods and Procedure, etc.". p. 49.) The formal parts of treaties, and the documents connected with the making of treaties, such as Full Powers, Instruments of Ratification, Procès-verbaux of Exchange of Ratifications, etc., [p62] contain many expressions of an archaic and purely routine character, and I do not find it possible to infer from the expression "which treaty is, word for word, as follows" the intention of the Contracting Parties to incorporate all the documents which follow into the treaty; that is, I do not think that Article 36 (1) of the Statute of this Court envisages as one of the bases of its jurisdiction so slender a consensual foundation as is afforded by the use of one of these venerable and routine formulas. The corresponding expression in the Greek Instrument of Ratification is "the texts of which follow"

***

Too much importance must not be attached to consistency in language, but it must be noted that Articles 8, 14, 19, 21, 25, 29, 30 and 32 of the Treaty of 1926, when referring to that Treaty, use the expression "the present Treaty" or "this Treaty", whereas the accompanying Declaration refers to it as "the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date", just as later on it refers to the Anglo-Greek Commercial Treaty of 1886. This language suggests to my mind that the signatories of the Declaration did not regard it as a part of the Treaty of 1926. If they had done so, they would have found it shorter, more natural and more consistent with the language of that Treaty itself to use the expression "the present Treaty" or "this Treaty" ; moreover, it is unlikely that they would have lapsed into the first person and used the expression "our two Governments", which is more appropriate to an exchange of assurances by Ministers on behalf of their respective Governments than to a treaty.

***
I shall now turn from questions of form and language to examine the juridical nature of the Declaration and its relation to the Treaty.

The genesis of the Declaration must be noted. It is not necessary" for the Court, nor open to it at this stage, to construe the Declaration for the purpose of forming an opinion on the question whether or not the Ambatielos claim falls within it. It is, however, both permissible and necessary to examine the question why, and how, the Declaration came into being. It must be remembered that, until a date in 1926 about to be mentioned, the commercial relations between Greece and the United Kingdom were governed by the Anglo-Greek Commercial Treaty of 1886. This Treaty was denounced by the Hellenic Government in 1919, no doubt with [p63] the intention that it should be replaced by a treaty more appropriate to modern conditions. The operation of the denunciation was suspended from time to time, and it did not actually take effect until the 28th July, 1926. Attached to the "Observations and Submissions of the Hellenic Government on the Objection to the Jurisdiction" is the following letter from Mr. Miles Lampson (as he then was) of the United Kingdom Foreign Office:

"Foreign Office.
22nd June, 1926.
The Greek Minister.
Sir,
Before proceeding to the signature of the commercial treaty between Greece and this country, I would ask for an assurance that the conclusion of the treaty will not be regarded by your Government as prejudicing the claims of British subjects for compensation or relief on the ground that the recent Greek loan is contrary to Article 13 of the Anglo-Greek Commercial Treaty of 1886, and for a further assurance that in the event of any difference of opinion between our two Governments with reference to the validity of these claims, the matter shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886, annexed to the said Treaty.
M. Lampson,
For the Secretary of State."

Upon receipt of this letter, the Hellenic Government, in order to generalize the reference to claims arising under the Treaty of 1886 and to make the proposed assurance reciprocal, submitted a draft Declaration, the terms of which are to be found in paragraph 13 of the Counter-Memorial of the United Kingdom dated 4th February, 1952. The United Kingdom Government, in reply, proposed the form of Declaration which was in fact adopted. The Declaration is evidently an elliptical document and seems to be due to the desire of both Parties that the expiry of the Treaty of 1886, then imminent, should not adversely affect claims "based" upon it, and the procedure of arbitration provided therein for them. I do not see how the provisions of the Treaty of 1926 could prejudice claims "based" on the Treaty of 1886 because, in my opinion, such claims acquire an existence independent of the treaty whose breach gave rise to them. Neither the expiry of the Treaty of 1886, nor the entry into force of the Treaty of 1926, could affect the survival and validity of claims "based" on a breach of the Treaty of 1886 which had already occurred. In other words, I consider that the first sentence of the Declaration was, however prudent, strictly speaking unnecessary and was [p64] inserted ex abundanti cautela. On the other hand, the second sentence of the Declaration, that is, the sentence dealing with the arbitral procedure, was necessary to preserve that procedure, because it would otherwise lapse upon the expiry of the Treaty of 1886. What made the first sentence of the Declaration prudent, and the second sentence of the Declaration necessary, was not the Treaty of 1926 but the imminent expiry of the Treaty of 1886, which took effect on 28th July, 1926, by reason of its denunciation by the Hellenic Government. The Declaration does not touch or concern anything contained in the Treaty of 1926 but regulates something external and collateral to it.

***

There are two other factors which support the conclusion that the Declaration is not part of the Treaty of 1926: first, the difference between the Treaty and the Declaration as to the respective periods of their duration, and, secondly, the difference in their respective provisions for the settlement of disputes. The effect of Article 32 of the Treaty of 1926 is that the Treaty was intended to last for at least three years from the date of its coming into force and thereafter would remain in force until the expiration of one year's notice given by either Part}' to the other. Thus it was capable of expiring at the end of three years from the date of its coming into force. On the other hand, no date is fixed for the expiry of the duration of the Declaration, and it would have been highly inconvenient and contrary to the intentions of the Parties that the arbitral procedure expressly maintained by the Declaration should fall to the ground at the same moment as the Treaty of 1926. This was an additional reason for making the Declaration a separate document and not making it a provision of the Treaty.

Moreover, it is necessary to note that the Declaration contains its own machinery for the settlement of disputes between the two Governments as to the validity of claims arising under the Treaty of 1886, namely, the arbitral procedure provided by the Protocol of November 10th, 1886, annexed to that Treaty. The fact that the Parties maintained this special machinery for dealing with these claims makes it difficult to believe that the general machinery of Article 29 of the Treaty of 1926 was intended to apply to any dispute concerning such a claim.

***

The conclusion that I reach is that the Declaration is precisely what it is said to be in the League of Nations Treaty Series, Vol.[p65] LXI, p. 16, namely, an "accompanying Declaration", and that it is not among the "provisions of the present Treaty" within the meaning of Article 29. It is a collateral and contemporaneous agreement between the Parties, entered into because one of them, at any rate, was not prepared to sign the new Treaty, and to contemplate the expiry of the old Treaty of 1886 on the 28th July, 1926, without having previously made sure that claims based on the old Treaty would survive these events and, what is more important, that the arbitral procedure provided in the old Treaty for dealing with these claims should also survive with them. But even if the provisions of the Declaration are among the provisions of the Treaty of 1926, in my opinion the existence of the special machinery for dealing with disputes contained in the Declaration excludes the application of the general provisions of Article 29 of that Treaty.

For these reasons, the Court has, in my opinion, no jurisdiction at all in this case.

(Signed) Arnold D. McNair. [p66]


DISSENTING OPINION OF JUDGE BASDEVANT

[Translation]

I greatly regret that I am able only to concur in part with the operative portion of the Judgment, and as I also disagree with the way in which the Court arrives at its decision, I think that I should indicate my main reasons for my view and the conclusions which I draw from those reasons.

***

The United Kingdom filed an objection to the jurisdiction in answer to the Application submitted by the Hellenic Government on April 9th. 1951. This objection to the jurisdiction was expressed in brief terms, but in terms having a very wide scope, by the United Kingdom Agent at the hearing in Court on May. 17th, 1952. The course of the arguments made it clear that this objection to the jurisdiction met a twofold claim by the Hellenic Government. The latter Government asked the Court, in the first place, to deal with the merits of a claim by that Government regarding the treatment of M. Ambatielos by the British authorities and, secondly, to decide as to the obligation to refer this claim to the arbitration provided for by the Protocol of November 10th, 1886.

It is in this order that the validity of the Preliminarv Objection raised by the United Kingdom should be considered. If the Court should find that it has jurisdiction to deal itself with the Ambatielos claim and if it accordingly retains this claim for its consideration, the request for a declaration that the claim must be referred to the arbitration provided for in the Protocol of 1886 becomes devoid of object and therefore the challenge to the jurisdiction to which it gave rise need not be further considered.

***

In accordance with the principle laid down by the Court in other cases (I.C.J. Reports 1949, pp. 177-178, and 1950, p. 71), which is not disputed in the present case, the jurisdiction of the Court depends upon the consent of the States parties to the dispute. Therefore, since no special agreement has been concluded, we are here concerned with Article 29 of the Treaty of July 16th, 1926, between Greece and the United Kingdom, the only text relied upon as conferring jurisdiction upon the Permanent Court of International Justice so far as these two States arc concerned; such a conferring of jurisdiction has now been extended to the International Court of Justice by the operation of Article 37 of the Statute of the Court. [p67]

Article 29 of the Treaty of 1926 confers upon the Court jurisdiction to decide any disputes that may arise between the contracting parties "as to the proper interpretation or application of any of the provisions of the present Treaty". The facts which the Hellenic Government submits for the Court's decision as to their conformity, or otherwise, with the United Kingdom's international obligations, occurred before the conclusion of the Treaty of 1926. The complaints which the Hellenic Government seeks to base upon these facts cannot be judged upon the basis of obligations flowing from the Treaty of 1926. These complaints are therefore outside the sphere of applicability of Article 29 : this Article provides no ground entitling the Court to deal with them.
The fact that the Treaty of 1926 is said to contain provisions more or less similar to those of the Treaty of 1886 cannot make the provisions of the Treaty of 1926 applicable to facts which occurred before the coming into force of this Treaty, and thus extend to such facts the effect of Article 29, the only provision conferring jurisdiction on the Court.

The Declaration which follows the Treaty of 1926 shows the correctness of this conclusion. That Declaration refers to differences as to the validity of claims based on the Treaty of 1886. The Hellenic Government contends that the Ambatielos claim is one of the claims referred to in the Declaration of 1926; there is no need to decide as to the correctness of this contention, for it is sufficient to observe that the Declaration provides, for the settlement of differences relating to such claims, the arbitral procedure created by the Protocol of 1886; it does not substitute judicial proceedings before the Court for this procedure. Furthermore, the Greek Legation in London stated in a note of August 6th, 1940: "The Arbitral Committee provided for by the final Protocol of the Greco-British Commercial Treaty of 1886 is the only competent authority in the matter."

The Court therefore has no jurisdiction to deal with the merits of the Ambatielos claim as formulated in paragraph 1 of the Conclusions presented on behalf of the Hellenic Government at the hearing of May 17th.

***

Having no jurisdiction to deal with the Greek claim relating to the treatment of Ambatielos, the Court is confronted by another aspect of the dispute. The Hellenic Government asked that the Ambatielos case should be referred to the arbitral procedure established by the Protocol of 1886; the United Kingdom Government refused. The Hellenic Government then asked the Court to say that this arbitral procedure should be applied in this case. This second dispute, which thus relates to the existence in this [p68] case of an obligation to have recourse to the arbitral procedure of the Protocol of 1886, has been described in different terms in the course of the proceedings, and the jurisdiction of the Court to deal with it is disputed by the United Kingdom. The Court must therefore decide whether it has jurisdiction to deal with this point.

In the Conclusions submitted in its Counter-Memorial, the United Kingdom has employed an abstract form for the statement of its objection to the jurisdiction. The Court cannot deal with a submission so formulated. It has before it a concrete claim that it should state whether the United Kingdom is under an obligation to accept the submission to arbitration of the Hellenic claim relating to the Ambatielos case. The Court has to determine whether it is competent to adjudicate upon the existence of such an obligation in the present case.

The obligation which the Hellenic Government asks the Court to find in this case derives from the Protocol of 1886, which provides for the submission to a Commission of Arbitration, constituted by the two Governments, in each case, for this purpose, of disputes arising between them respecting the interpretation or the execution of the Treaty of r886, or the consequences of any violation thereof. The Hellenic Government requested that its claim in the Ambatielos case should be submitted to arbitration; the United Kingdom Government refused, and the arbitration clause of the Protocol of 1886 therefore did not take effect.
There was thus an example of the gap existing in the machinery of an arbitration clause which, as is frequently the case, can only become effective as the result of the joint action of the two States in conflict: in this case such joint action was necessary for the constitution of the Commission of Arbitration. Where one of the States adopts the view that the case is not one calling for arbitration, the operation of the arbitration clause becomes impossible. This gap, which exists also in respect of other treaty provisions, has manifested itself in other cases besides the present one. Attempts have at times been made to fill this gap. One such attempt was made in Article 53 of The Hague Convention I of October 18th, 1907, a provision which has however been made inoperative, so far as they were concerned, by a number of States, including Greece, by means of a reservation.

The Protocol of 1886 left the gap unfilled. It does not itself provide and remedy for this defect. The Hellenic Government contends that a remedy is provided by Article 29 of the Treaty of 1926, and the Declaration following this Treaty, on the ground that the Court, by virtue of these texts, has jurisdiction to decide whether the Ambatielos claim should be submitted to arbitration in application of the Protocol of 1886. According to this argument, Article 29 and the Declaration of 1926 impliedly added to the undertaking to arbitrate given in 1886 a further clause conferring [p69] jurisdiction on the Court to adjudicate upon disputes arising with regard to the interpretation or the application of the arbitration clause in the Protocol of 1886.

The Declaration of 1926 provides that any differences which may arise between the two Governments as to the validity of claims on behalf of private persons based on the provisions of the Treaty of 1886 "shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886". Article 29 of the Treaty of 1926 confers jurisdiction on the Court to deal with disputes as to the interpretation or application "of any of the provisions of the present Treaty". It was contended, on behalf of the Hellenic Government, that the Declaration of 1926 was an integral part of the Treaty of the same date, that what was therein provided was to be regarded as a provision of that Treaty, that, consequently, a dispute as to the interpretation or application of the Declaration was within the jurisdictional clause contained in Article 29 and that thus a way was opened for the admission of the Court's jurisdiction to decide as to the interpretation or application of the arbitration clause contained in the Protocol of 1886 and referred to in the Declaration of 1926.

Underlying this argument is the idea that the Declaration is an integral part of the Treaty of 1926, that it is a provision of this Treaty. If this proposition be not accepted, the whole argument founded upon it falls to the ground, for the Declaration makes no reference to the Court and does not directly confer any jurisdiction upon it.

In order to determine whether the Declaration is or is not part of the Treaty, the Parties presented lengthy arguments concerning the external features of the Declaration in relation to the Treaty of 1926, the references that have been made to both of them, and«the place attributed to them in the documents connected with them. For a proper appreciation of the significance which ought to be attributed to any factor of this nature a preliminary observation is called for.

The drafting and the signature of an international agreement are the acts by means of which the will of the contracting States is expressed ; ratification is the act by which the will so expressed is confirmed by the competent authority, for the purpose of giving it binding force. All these acts are concerned with the substance itself of an international agreement. But the recording of these acts in the instruments which are designed to give them material existence involves the physical operations of writing, printing, transmission by one party to the other, etc., operations which do not contribute to the formation of the will of the contracting States; those who have the task of forming, expressing or confirming this will, do not, as a rule, take part in these physical operations; these operations commonly take a form deriving from [p70] tradition, which is followed scrupulously, and therefore blindly, by the officials entrusted with this material task. It would be wrong to attribute to the details of form thus superimposed upon the juridical act of the conclusion of a treaty any determining influence, when it becomes necessary, in case of doubt, to ascertain the true meaning of the agreement which has been reached, the character which the parties intended to give to any given agreement concluded between them.

The scope to be given to a particular expression employed, or to a particular form which has been followed, should be considered in the light of these remarks when it is sought to determine whether the Declaration of 1926 is to be regarded as constituting a provision of the Treaty of the same date.

In this connection, it is of particular significance that it was the very persons who were responsible for expressing the will of the States who chose to use, in Article 29, the expression "provisions of the present Treaty", and not a more comprehensive expression. It was they who chose to give their agreement concerning claims based on the Treaty of 1886 the form of a separate provision, and not of an article in the Treaty of the same date; it was they who gave it the title of Declaration and not that of an additional article, who saw fit to append their signatures to it, separately from the Treaty, and to make no reference to it in the Treaty, in contra-distinction to what they did in the case of the Schedule which precedes it. All this, for the reasons indicated above, is of greater importance in determining the character of the Declaration than the fact that the Declaration was printed after the Treaty and the Schedule, in one document with consecutive pagination, physical details which, like others of the same kind, are governed by the actions of officials who, unlike plenipotentiaries, were not responsible for elaborating and stating the will of the contracting Parties.

Similarly, when they signed the instruments of ratification— act by which they confirmed the agreement reached by their respective Plenipotentiaries and by which they gave the Declaration a definitive character of the will of the contracting States—the President of the Greek Republic and the British Monarch were merely confirming what had already been declared by their Plenipotentiaries. They did not direct their minds to details, often superfluous or incorrect, which officials, unqualified to interpret, complete or correct the intentions of their Sovereigns, borrowed from forms which they traditionally and blindly followed.

An examination of the various factors relied upon on either side—if undertaken with care to attribute importance only to those considerations which throw light on the intentions of those who alone were qualified to declare the will of their respective Governments and not to considerations which do not relate to [p71] the formation of this will—should lead to the view that the Declaration is distinct from the Treaty, and not a clause or provision of the Treaty itself; such an examination should also lead to the reading of Article 29 as it is written—that is to say, as giving the Court jurisdiction in respect of disputes as to the interpretation or application of the "provisions of the present Treaty"—and not to the substitution, for these perfectly clear words, by means of interpretation, of the words "provisions upon which agreement was reached by the Parties to-day", or some such words of lesser precision.

This independent character of the Declaration also clearly appears if, putting aside particularities of form and details of presentation, one has regard to the substance of the matter, with a view to considering whether the Declaration, in spite of its separate presentation, does not constitute a sort of supplementary provision of the Treaty, which it would have been proper to describe as an additional article: that was the method adopted by Max Huber in his Report on the British claims against Spain, when he had to decide as to the independent character of an agreement which he was called upon to interpret (Reports of International Arbitral Awards, II, pp. 632-633).

The Declaration does not explain any clause of the Treaty. Nor does it explain its general effect, which has been said to be the abrogation of the Treaty of 1886 by the Treaty of 1926. In fact, not only did the Treaty of 1926 contain no provision abrogating the Treaty of 1886, but it did not effect any tacit abrogation of the Treaty of 1886. The Treaty of 1886 did not cease to be in force as the result of any express or implied abrogation by the Treaty of 1926, but as a result of its denunciation by the Hellenic Government on March 3rd, 1919. The date upon which this denunciation was to take effect was the subject of a number of postponements, and it was finally fixed as at the date of the coming into force of the new Treaty. The coming into force of the Treaty of 1926 thus provided a date adopted by both Parties on which the earlier denunciation would have legal effect; it is not itself the juridical source of the extinguishment of the Treaty of 1886: this extinguishment resulted from the denunciation of the Treaty.

Consequently the Declaration of 1926, considered from the point of view of its content, is not an instrument which explains the Treaty of 1926, but an agreement relating to one of the effects of the lapsing of the Treaty of 1886, this lapsing being itself the result of the denunciation of this Treaty. From the point of view of its substance, even more clearly than from the point of view of its form, the Declaration must be regarded as separate from the Treaty. It cannot be regarded as, or even assimilated to, a provision of the Treaty. It follows that the jurisdictional clause of Article 29 of the Treaty is not applicable to it. [p72]

The Declaration of 1926 was designed to preserve, in respect of the claims therein referred to, the earlier regime resulting, so far as the merits were concerned, from the Treat}- of 1886, and, so far as the procedure for the settlement of disputes was concerned, from the Protocol of 1886, to which it specifically refers. The earlier regime was preserved as it stood, with its advantages and disadvantages. Its disadvantages (the possibility of frustration of the arbitration procedure) only became apparent later. There is nothing to suggest that in 1926 there was any thought of remedying this defect with regard to claims arising falling within the Treaty of 1886. If this had been thought of, the system adopted would not have been to entrust to the Court the settlement of a dispute which might arise as to whether, in any given case, there was an obligation to resort to arbitration, while at the same time preserving the arbitral procedure before a Commission of Arbitration appointed ad hoc to deal with the principal dispute, that relating to the validity of the claim ; rather would there have been a complete substitution of the Court's jurisdiction for the arbitral procedure provided for in 1886. This was not the course adopted. It is impossible to attribute to the framers of the Declaration an intention which they never expressed, namely to create a system of such complexity, and one which, at the present time, neither of the Parties would wish to be applied.

It is therefore necessary to recognize that the Declaration leaves the claims which a part}' seeks to base upon the Treaty of 1886 legally in the same position as they occupied formerly. It leaves unaffected the gap in the operation of the arbitration clause of the Protocol of 1886. If we have regard to the stage of development of international law at that period, and to the fact that in 1926 neither of the two States had subscribed to the Declaration relating to the compulsory jurisdiction of the Court, there is nothing surprising about this. The Court therefore has no jurisdiction to deal with a dispute concerning the existence, in a given case, of an obligation to resort to arbitration pursuant to the Protocol of 1886. In other words, Article 29 of the Treaty of 1926 does not appear to me to be applicable to such a dispute.

Furthermore, if it be accepted that the Declaration is a provision of the Treaty of 1926, that would mean that the Court has jurisdiction to deal with a dispute concerning the interpretation and application of the Declaration: that would authorize the Court, in the present case, to adjudicate upon the British contention that it is entitled to refuse to the Ambatielos claim the benefits of the Declaration, on the ground that it was not presented prior to the Declaration.

But a decision on this point is not sufficient to resolve the question whether there exists any obligation to refer the Ambatielos claim to arbitration. Such an obligation, if it exists, arises from the Treaty and the Protocol of 1886: the dispute as to the [p73] existence, in this case, of such an obligation is a dispute concerning the interpretation and application of that Treaty and that Protocol. But Article 29 did not confer on the Court jurisdiction to deal with a dispute which, in the way now contemplated, relates exclusively to the interpretation and the application of the Treaty and Protocol of 1886: it has never been contended—and it is manifestly impossible to say—that the provisions of that Treaty and Protocol are provisions of the Treaty of 1926.

In conclusion, the Court ought in this case simply to observe that the Declaration of 1926 left the Parties with the regime created by the Treaty and the Protocol of 1886, a regime which remained completely unchanged by the Declaration, and that it is therefore for the Parties to take such action as they deem proper in pursuance of the provisions of the Treaty of 1886, and that the Court has not been invested by the Parties with any power to substitute itself for them in determining the action which ought to be taken in pursuance of those provisions in the present case.

***

The foregoing considerations lead me to the conclusion that the Court has not been given jurisdiction either to deal with the merits of the claim presented by the Hellenic Government in the Ambatielos case, or to consider and decide whether there is an obligation binding the States at issue to submit this claim to the arbitration provided for by the Protocol of 1886.

(Signed) Basdevant. [p74]


DISSENTING OPINION OF JUDGE ZORTCIC

[Translation]

The Court has found that it has jurisdiction to decide whether the United Kingdom is under an obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, in so far as this claim is based on the Treaty of 1886. I regret that I am unable to concur in this decision for the following reasons:

I

It is common ground between the Parties that Article 29 of the Treaty of 1926 is the only contractual clause between them which, in conjunction with Article 37 of the Court's Statute, confers compulsory jurisdiction on the Court. Article 29, paragraph 1, is worded as follows:

"The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration."

Paragraph 2 of the same Article lays down that the court of arbitration shall be the Permanent Court of International Justice, and therefore, in the present circumstances, the International Court of Justice.

On the other hand, the Declaration of July 16th, 1926, lays down that:

”…the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886, and that any differences which may arise between our two Governments as to the validity of such claims shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886, annexed to the said Treaty."

The Protocol of November 10th, 1886, provides for the settlement of controversies by commissions of arbitration, the members of which have to be selected by the two Governments, by common consent, etc.

It was not disputed by the Parties that the Ambatielos claim was put forward by the Hellenic Government on the basis of the Declaration. They disagree upon the question whether the Decla-ration can, or cannot, be regarded as a provision of the Treaty [p75] of 1926, within the meaning of Article 29 of that Treaty, conferring jurisdiction on the Court.

The question whether a separate provision adopted by the parties on the occasion of the conclusion of a treaty should or should not be considered as an integral part of the treaty in question, depends—in the absence of any rule on that point— entirely on the circumstances of each individual case. These circumstances may include certain formal elements, but what is of chief importance is the content of the provision in question.

In the case now before the Court, it has been argued that the plenipotentiaries inserted the Treaty, the Customs Schedule, which is indisputably a part of the Treaty, and the Declaration, in a docu-ment of 44 pages, the Declaration appearing on page 44. Furthermore, great importance has been attached to the fact that the ratification of the Declaration was effected by the two States, at the same time as the ratification of the Treaty, and that, above all, the United Kingdom document of ratification does not mention the Declaration separately, but conjointly with the Treaty, and under the designation "Treaty".

In my opinion all these considerations are of secondary importance, and it can be argued in the opposite sense that the Declaration was drawn up and signed as a separate instrument from the Treaty, having a title of its own, and that neither the Treaty nor the Declaration mentions the latter as being part of the Treaty, although the Parties were careful, in Article 8 of the Treaty, to make express mention of the Customs Schedule which precedes the Declaration. In regard to ratifications, the Hellenic ratification mentions the Treaty and the Declaration separately, while the United Kingdom's instrument of ratification, worded in the terms of a formula, doubtless of long standing, certainly refers to the Treaty: "which is word for word as follows", but nevertheless includes the Declaration under its own title. It follows, in my opinion, that the two Governments undoubtedly considered the Treaty and the Declaration as forming part of a simultaneous agreement, and as having to be ratified together, but that in no way proves that the Declaration was "a provision" of the Treaty of 1926 within the meaning, and for the purposes, of Article 29 of that Treaty; still less does it follow that the Parties intended to submit disputes in regard to the application of that Declaration to the arbitration provided for in Article 29. Again, the Declaration was drawn up subsequently to, and independently of, the Treaty, a point on which I shall have more to say later on.

In these circumstances, the point of real importance is what are the terms of the text that has to be construed, and what were the intentions of the Parties and the purposes which the text was to serve, for: “… the Court's aim is always to ascertain whether an intention on the part of the parties exists to confer jurisdiction upon it" (P.C.I.J., Series A, No. 8, p. 32). [p76]

In order to understand the aim of the Declaration and the intention of the Parties, it is necessary to recall the situation which gave rise to this Declaration. Greece and the United Kingdom had, in 1886, concluded a treaty of commerce and navigation, to which was attached a protocol providing that any controversies which might arise respecting the interpretation or the execution of the Treaty should be submitted to the decision of commissions bf arbitration. The Treaty of 1886 was denounced by Greece in 1919, and was afterwards renewed, for successive periods, the last time by an exchange of notes, until August 31st, 1926, it being, however, understood that it would cease to be in force on the date of the coming into force of the new Treaty, which was in course of pre-paration. Before the signature of the new Treaty the United Kingdom Government had realized that, owing to the termination of the Treaty of 1886, certain claims of its nationals, based upon that Treaty, could no longer be referred to the arbitration provided in the Protocol of 1886, and in order to safeguard these rights—that is, rights founded on the Treaty of 1886—the United Kingdom Government approached the Hellenic Government (see letter of June 22nd, 1926, from the Foreign Office to the Greek Minister, annexed to the Greek Observations) seeking for assurances on this point before the signature of the new Treaty, which had, it is clear, been already drafted. The two Governments then agreed on the Declaration, which was signed on the same day as the Treaty of July 16th, 1926. It is the interpretation and application of this Declaration which have given rise to the present dispute.

In these circumstances, I do not consider that any support for the theory that the Declaration was an interpretation of the Treaty of 1926, or a reservation to that Treaty, is to be found, either in the terms of the Treaty, or in the purposes which the Declaration was to serve, or in the terms of the Declaration. A reservation is a provision agreed upon between the parties to a treaty with a view to restricting the application of one or more of its clauses or to clarifying their meaning; it is therefore, by its very nature, closely linked to the content of the Treaty. But in the present case, the Treaty makes no mention of the Declaration; and the Declaration, for its part, does not explain anything; it neither adds anything to, nor subtracts anything from, the provisions of the Treaty of 1926; all that it says is that "the Treaty of to-day's date does not prejudice claims .... based on the .... Treaty of 1886". Leaving on one side the indisputable fact that the Treaty of 1926 could not, in the absence of any special provision to that effect, in any way prejudice rights acquired under the regime of an earlier treaty, and that, in consequence, the words "the Treaty .... of to-day's date" could not have reference to the content of the Treaty of 1926, the only true interpretation of these terms seems to be that it was intended simply to fix the date of the expiry of the Treaty of 1886; this event was in no way a consequence of any [p77] clause in the Treaty of 1926, or of that Treaty as a whole, but was a consequence of the denunciation by Greece of the Treaty of 1886 which—as has been mentioned—was to be brought to an end, by means of a special agreement contained in an exchange of notes, on the date of the coming into force of the new Treaty.

If that is the case, and I feel no doubt upon the subject, it seems impossible to hold that the Declaration can be regarded as an interpretative clause or as a reservation to the Treaty of 1926, which does not contain any clause repealing the Treaty of 1886. Article 32 of the Treaty of 1926 does not even mention the Treaty of 1886; it merely provides that the Treaty of 1926 will come into force immediately after the ratification, that is, at an uncertain date. As it had been agreed upon, in the exchange of notes mentioned above, that this uncertain date should be the date of expiry of the Treaty of 1886, the only relation between the coming into force of the treaty of 1926 and the termination of the Treaty of 1886 was a coincidence of dates resulting from a special agreement. Far from being a reservation to the Treaty of 1926, the Declaration is, in my opinion, a reservation to the expiry of the Treaty of 1886, or, in other words, it is a partial prolongation of the Treaty of 1886 in so far as it maintains in existence claims based on the Treaty of 1886 and the means of arbitration provided for their settlement. The Declaration is, therefore, a special agreement governing a situation which is entirely extraneous to the Treaty of 1926, and it is not a provision of that Treaty within the meaning and for the purposes of Article 29 of the Treaty.

That this is so is shown, in the first place, by the fact that, when drawing up the Treaty of 1926 and its Article 29, the Parties could not have had in mind any other provisions than those contained in the Treaty itself ("provisions of the present Treaty") and by the fact that the Declaration, prepared subsequently to the drafting of the Treaty and relating to a subject foreign to that Treaty, could not even have been contemplated at the time when the Treaty was drawn up. It follows that the Parties could not have had in mind the application of Article 29 to the subsequent Declaration.

Secondly, the Declaration, which related solely to claims based on the Treaty of 18X6, provided that "such claims" should be dealt with by means of the arbitration prescribed in the Protocol of 1886, that is to say, by a special method of arbitration differing from that of Article 29. The Parties could quite well have inserted in the Declaration a reference to Article 20 of the Treaty of 1926, as was done in the entirely analogous Declaration annexed to the Greco-Italian Treaty of November 24th of the same year. They did not do so, and it must therefore be concluded that they deliberately maintained two methods of arbitration, that is to say, arbitration by the Court under Article 29 for disputes arising under the Treaty of 1926, and the arbitration provided for in the Protocol of 1X86 for disputes arising in connection with claims based on the 'treaty of 1886.[p78]

That this was so and that the Hellenic Government itself considered that the arbitration system of 1886 was the only one applicable to the disputes mentioned in the Declaration, is clearly shown by the attitude which it observed throughout so many years subsequent to the ratification and which it expressed in particular in its note of August 6th, 1940, addressed to the United Kingdom Government, wherein it stated:

"From the enclosed memorandum it clearly appears, in the opinion of the Royal Hellenic Government, that the arbitral committee provided for by the final protocol of the Greco-British Commercial Treaty of 1886 is the only competent authority in the matter, and it is their sincere hope that His Britannic Majesty's Government will see their way to inform them of the appointment of their arbitrator or arbitrators for a final settlement of this question." (My italics.)

II

To the foregoing considerations there should, in my opinion, be added another which is even more important, namely, that the Parties could not have intended to introduce in what has been called one and the same treaty, a dual jurisdiction, that of Article 29 and that of the Declaration, for it is manifest that this must give rise to all kinds of complications.

If the Declaration were to be regarded as a provision of the Treaty of 1926, within the meaning of Article 29, it would follow, according to the terms of the latter Article, that "any dispute that may arise between the Parties as to the proper interpretation or application" of the Declaration must be submitted to this Court as the Court of arbitration referred to in Article 29.

It would be impossible to draw a line of demarcation between the jurisdiction of the Court and that of the commissions of arbitration provided for in the Declaration, so that the Court would have jurisdiction only to decide whether the Parties were bound to have recourse to the arbitration system of 1886, while the commissions of arbitration would be competent to decide disputes concerning the validity of claims based on the Treaty of 1886. No foundation for such a division of jurisdiction can be found either in Article 29 or in the Declaration, for they both confer jurisdiction without any qualification. Either the Court has jurisdiction to interpret and apply the Declaration, or it has not. If it has jurisdiction, it cannot confine itself to exercising only a part of its jurisdiction and to stop at that point. On the contrary, the Court must decide, at the very least, whether the conditions of the Declaration have been satisfied—a point which pertains to the merits—that is to say, in particular, whether the claim was formulated and submitted in conformity with the Declaration, whether the Hellenic Government's claim is not barred [p79] as the result of the delay in its submission (a question which has, in fact, already been decided in the Judgment), whether the claim is based on the Treaty of 1886, and so on. Only if the Court were convinced that the conditions of the Declaration had really been fulfilled would it be possible for it to refer the case to the arbitral commission of arbitration provided for, as a special arbitration, for the sole purpose of determining the validity of the claim.

But, according to the Declaration, it is not solely on the validity of the claims that the commissions of arbitration are to decide. On the contrary, any examination of the conditions of the applicability of the Declaration falls within the exclusive jurisdiction of the commissions of arbitration provided for in the Protocol of 1886. It is these commissions, and these alone, that are to decide "on the validity of such claims"; they must, therefore, before undertaking an examination of the validity, satisfy themselves that these claims are really "such" as are referred to in the Declaration. It follows that any action by the Court in relation to the Declaration and based on Article 29 of the Treaty of 1926 would inevitably lead to overlapping and to a confusion between the Court's jurisdiction and that of the commissions of arbitration referred to in the Declaration, an extraordinary confusion which, I am convinced, the Parties certainly never intended to create.

I have, therefore, reached the conclusion that, even if the Treaty and the Declaration are regarded as being part of one and the same agreement between Greece and the United Kingdom, the Decla-ration cannot be regarded as a provision of the Treaty of 1926, within the meaning and for the purposes of Article 29 of that Treaty, and that, in consequence, the Court is without jurisdiction in the present case.

(Signed) Zoricic. [p80]


DISSENTING OPINION OF JUDGE KLAESTAD

The Hellenic Government, which has not made any declaration under Article 36 (2) of the Court's Statute, contends that the jurisdiction of the Court can be derived from Article 29 of the Treaty of Commerce and Navigation of 1926 between Great Britain and Greece. The text of this Article is as follows:

"The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

The Court of arbitration to which disputes shall be referred shall be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise."

The facts invoked by the Hellenic Government relate to the period from 1919 to 1923. Such facts can hardly involve an interpretation or application of provisions of a treaty which did not exist at the time when the acts complained of were done. One cannot commit a breach of non-existing treaty provisions, and it cannot make any difference if such provisions in a future treaty might become more or less similar to some of the provisions of the Anglo-Greek Commercial Treaty of 1886 actually existing at the time when the alleged breaches of those provisions were committed. The two Treaties were independent legal instruments, governed by different arbitration clauses.

The Hellenic Government further contends that the jurisdiction of the Court can be derived from the Declaration attached to the Treaty of 1926. The text of this Declaration is as follows:

"It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886, and that any differences which may arise between our two Governments as to the validity of such claims shall, at the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November 10th, 1886, annexed to the said Treaty."

As the Declaration itself does not refer any dispute to the Permanent Court of International Justice, the contention of the Hellenic Government is that the Declaration is a part of the 1926 Treaty and as such is covered by the arbitration clause in Article 29. The [p81] appreciation of this contention depends on considerations of form as well as of substance.

As to matters of form, it should be noted that the Treaty and the Declaration were treated as two separate instruments, in so far as they were drafted and issued as separate documents and signed separately. On the other hand, they were signed at the same time by the same signatories, and the Declaration was ratified by both Governments, together with the Treaty. That the two instruments were ratified together and covered by the ancient routine formula for ratifications does not necessarily mean that the one is to be regarded as a part of the other. As this point is developed in the Dissenting Opinion of President Sir Arnold McNair, I shall not deal further with it.

As to matters of substance, it should be taken into consideration that nothing in the Treaty or Declaration indicates that the Declaration shall be regarded as a part of the Treaty. The Declaration does not present itself as an interpretation of any of the Treaty provisions, nor does it appear as an application of any of those provisions. It does not in any way modify the Treaty. It adds nothing to its provisions, nor does it subtract anything from them.

It has been argued that the Declaration affects the interpretation of certain articles of the 1926 Treaty in the sense that it prevents the coming into force of the Treaty from extinguishing claims which have accrued out of facts governed by the 1886 Treaty. The real and only scope of the Declaration is, however, in my opinion, that it provides what is to be done with certain claims accrued under the 1886 Treaty when that Treaty disappears. It keeps such claims alive, together with the arbitral procedure prescribed by the Protocol attached to the 1886 Treaty. It relates to the 1886 Treaty, and to that Treaty only.

Having regard to these various considerations, I am inclined to hold that the Declaration cannot be regarded as a part of the 1926 Treaty, and that Article 29 therefore does not apply to it. I shall limit myself to these brief remarks with regard to this aspect of the matter, since the following considerations are, in my opinion, more conclusive. I shall now examine this preliminary dispute on the hypothesis that, contrary to my view, the Declaration does form a part of the Treaty.

Article 29 contains a general arbitration clause by which the Parties "agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration"—arbitration by the Permanent Court of International Justice (or now by the International Court of Justice by the operation of Article 37 of the Court's Statute). [p82]

The Declaration contains a special arbitration clause which refers disputes as to certain particular claims based on the 1886 Treaty to arbitration in accordance with the provisions of the 1886 Protocol. This special arbitration clause must, in accordance with general principles of interpretation, prevail over the general arbitration clause.

In fact, the Parties agreed "in principle" that disputes as to the interpretation or application of the provisions of the 1926 Treaty should be referred to the Court. But when they considered the particular claims based on the 1886 Treaty, they expressly provided that disputes as to such claims should be referred to the Arbitral Commission. They maintained for such disputes the arbitral procedure of the 1886 Protocol. The Parties agreed, in other words, that these two different methods of arbitration should exist side by side. Even if the Declaration is to be regarded as a part of the Treaty of 1926, the method of arbitration prescribed by Article 29 could not therefore be applied in the case of disputes concerning claims based on the Treaty of 1886. For such disputes the other method of arbitration was expressly maintained.

I shall now take a step further and assume that, contrary to my view, Article 29 does apply to the Declaration, and that the Court has jurisdiction to interpret and apply this Declaration and to decide whether the United Kingdom Government is under an obligation to submit the present dispute to the Arbitral Commission.

The Declaration contains various conditions for the submission of a dispute to that Commission. The claim must be "based on the provisions of the Anglo-Greek Commercial Treaty of 1886". It must be made "on behalf of private persons". The difference must have arisen "between our two Governments". It must relate "to the validity of such claims". In this connection should also be men-tioned the contention of the United Kingdom Government that the claim must have been formulated before the Declaration was signed. This alleged condition invoked by the United Kingdom Government relates, in my opinion, as do all the other above-mentioned conditions, to the question of the interpretation or application of the Declaration and not to the question, now under consideration, as to whether the Court has jurisdiction to interpret and apply the Declaration. Further conditions are contained in the 1886 Protocol to which the Declaration refers.

Before the Court could decide whether the United Kingdom Government is under an obligation to submit the dispute to the Arbitral Commission, it would have to determine the conditions prescribed for such a submission and to ascertain whether these conditions are fulfilled. [p83]

On the other hand, the merits of the dispute could not in any case, by virtue of the Declaration, be referred to the Court, since it is expressly provided in that Declaration that differences as to the validity of claims based on the 1886 Treaty shall, at the request of either Government, be referred to the Arbitral Commission.

On the hypothesis that the Court has jurisdiction to interpret and apply the Declaration, there would thus be established a duality of jurisdiction with regard to disputes relating to such claims. For one and the same dispute there would be two different processes of arbitration. Questions relating to the interpretation or application of the Declaration and to a part of the 1886 Protocol, including the question of the competence of the Arbitral Commission, would have to be referred to the Court, while other questions arising out of the same dispute, including the appreciation of the merits, would have to be submitted to the Arbitral Commission. While, for instance, a difference as to the validity of a claim would have to be referred to that Commission, as expressly prescribed by the Declaration, the question whether the difference, in fact, does relate to the validity of the claim would have to be referred to the Court, since this is a condition for submission to arbitration and involves an interpretation or application of the Declaration.

Such a dual arbitral procedure for one and the same dispute would be so complicated and artificial, so time-wasting and unusual, that it can hardly be believed to have been contemplated and accepted by the Parties to the Treaty and Declaration of 1926. In fact, they prescribed nothing of the kind, as far as I can see. They simply referred disputes concerning claims based on the 1886 Treaty to arbitration in accordance with the 1886 Protocol. They did not refer any question relating to such disputes to the Court. They did not prescribe that these disputes, or parts thereof, shall be settled by the method of arbitration provided for by Article 29 of the 1926 Treaty, though they could easily have done so if it had been their intention.

It should, moreover, be taken into consideration that, according to a recognized principle of international law, an international tribunal has the power to determine its own competence. It would accordingly be for the Arbitral Commission itself to decide whether it is competent to deal with a dispute referred to it. The Commission could be excluded from exercising such a competence only by an express and clear provision to that effect ; but no such provision limiting the competence of the Commission is contained in Article 29 of the 1926 Treaty or in the Declaration. It is difficult to believe that the Parties, by the provisions of Article 29, intended to confer also on the Permanent Court of International Justice the competence to decide whether a dispute is within the competence of the [p84]

Arbitral Commission, thereby exposing themselves to the risk that the two tribunals might arrive at opposite results.

For these reasons, I have arrived at the conclusion that the Court lacks jurisdiction in the matter. This conforms with the view expressed by the Greek Government in a note to the Foreign Secretary of the United Kingdom, dated 6th August 1940, in which it declared: "From the enclosed Memorandum it clearly appears, in the opinion of the Royal Hellenic Government, that the Arbitral Committee provided for by the final Protocol of the Greco-British Commercial Treaty of 1886 is the only competent authority in the matter...." This interpretation by the Greek Government itself as to the exclusive competence of the Arbitral Commission confirms the conclusion that the Court has no jurisdiction in the present case.

(Signed) Helge Klaestad. [p85]


DISSENTING OPINION OF JUDGE HSU MO

The principal issue in the present case is not simply whether or not the Declaration of 1926 is a part of the Treaty of 1926. It is the question whether the Declaration constitutes a provision or provisions within the meaning of Article 29 of the Treaty so that that Article must apply to these provisions just as it must apply to all the provisions contained in the text of the Treaty itself.

The facts with which the Court is concerned at this stage are that the Hellenic Government has taken up the claim of Ambatielos against the United Kingdom Government; that the Hellenic Government, invoking the Declaration of 1926, contends that the claim should be referred to arbitration in accordance with the provisions of the Protocol of November 19th, 1886; and that the United Kingdom Government has declined to go to arbitration on the claim. There is thus a dispute between the two Governments relative to the interpretation and application of the Declaration. The Court is called upon to determine whether or not, acting by virtue of Article 37 of the Statute, it has jurisdiction to examine and settle this dispute.

In order to determine this question, it is necessary to examine whether the Declaration should be regarded as being included in the expression "any of the provisions of the present Treaty" contained in Article 29, paragraph 1, of the Treaty of 1926. The fact that the Declaration appears at the end of the Treaty, was signed on the same day as the Treaty, and may be considered to have been ratified, together with the text of the Treaty, by the United Kingdom Government as well as the Hellenic Government, merely tends to show that the Parties attached equal importance in law and gave the same degree of solemnity to the two documents, but does not necessarily prove that the Declaration is an integral part of the Treaty, much less that Article 29 of the Treaty applies to the Declaration in the same way that it applies to the provisions of the Treaty. The question at issue must be resolved by considering the substance of the Declaration and its relation to the Treaty itself.

Prior to the conclusion of the Treaty of 1926, the Hellenic and the United Kingdom Governments had reached a modus vivendi, according to which the regime under the Treaty of 1886 and the Protocol annexed thereto would terminate upon the coming into force of the Treaty then under negotiation. The Declaration of 1926 produces no more effect than keeping alive the provisions of the Treaty of 1886 for the purpose of dealing with claims based thereon, as well as the arbitral procedure of settling any possible [p86] disputes concerning the validity of such claims. The Declaration did not in any way prevent the Treaty of 1926 from coming into full force upon the exchange of ratifications. It does not alter the situation which results from the operation of that Treaty. It does not add anything to nor detract from any of the provisions of the Treaty. It cannot be considered as forming any reservation to Article 32 or any other article of the Treaty which, as far as its own terms arc concerned, can be properly interpreted and applied without reference to the Declaration at all. When any claims envisaged in the Declaration have to be dealt with, it is not any of the provisions of the Treaty of 1926 which will be relied upon by one or the other Party, but it is the Declaration and the relevant provisions of the 1886 Treaty which will come into play. Any relationship which the Declaration bears to the Treaty is purely negative in character. The Declaration says, in effect: "Notwithstanding the conclusion of the new Treaty, the provisions of the old Treaty may still be relied upon for certain purposes." But for the Declaration, no claims based on the provisions of the 1886 Treaty could be entertained. This is not because the}' would have been wiped out by the 1926 Treaty, but because the 1886 Treaty with the Protocol, according to the modus vivendi, would have completely lost its force. The Declaration is thus not an interpretative clause of the Treaty of 1926; it rather constitutes a separate agreement whereby the Treaty of 1886, for certain purposes, has been given a new lease of life. In short, the Declaration has its own field of operation; it stands on an equal footing with the Treaty of 1926; it cannot be absorbed by Article 29 of that Treaty for the "interpretation or application of any of the provisions of the present Treaty".

The independent nature of the Declaration is confirmed by an examination of the distinctive methods of arbitration provided for respectively in the Declaration and in Article 29 of the Treaty. In one case, it is arbitration by ad hoc commissions; in the other, it is, in principle, arbitration by a permanently established international Court. From the very terms of the Declaration and Article 29, it may be justifiably inferred that the intention of the Parties was to make the two distinctive methods of arbitration exist side by side so that one might be brought into operation without resort to the other. The Parties wanted to have all disputes relative to the claims based on the old Treaty settled by the original procedure of arbitration. They wanted to have all disputes relative to any provisions of the new Treaty settled by the new procedure of arbitration. They envisaged two distinctive sets of disputes and two distinctive methods of arbitration. There is no connecting link between the new and the old method of arbitration.

It is difficult to believe that the Parties should have divided the process of settling disputes concerning claims based on the Treaty [p87] of 1886 into two successive phases. In the first phase any dispute concerning the obligation to submit to a Commission of Arbitration any claim based on the provisions of the 1886 Treaty, should be referred, unless otherwise agreed upon, to the Permanent Court of International Justice for settlement. Thus, the question of the existence or non-existence of a claim, of its being presented or not presented on behalf of private persons, or of its being based or not based on the provisions of the Treaty of 1886—in each case, a question concerning the interpretation or application of the Declaration—would logically belong to the first phase and would therefore fall within the jurisdiction of the Permanent Court of International Justice. After the dispute as to the arbitrable character of the claim had been settled in favour of the government making the claim, there would begin the second phase of settlement, which would consist in referring the dispute as to the validity of the claim itself to a different organ, a commission of arbitration to be set up in accordance with the Protocol of 1886. There is absolutely no evidence to show that the contracting Parties desired to have what is in reality one and the same dispute settled by these two different methods and through these two different stages. Such dual procedure is so uncommon in international practice that it could not possibly be inferred from a reasonable interpretation of Article 29 of the Treaty of 1926 in conjunction with the Declaration.

The procedure of arbitration prescribed in the Protocol annexed to the Treaty of 1886 is, after all, an ordinary system of settling international disputes. It was apparently in reliance upon mutual good faith that the Hellenic and the United Kingdom Governments kept alive that system in the Declaration of 1926, just as so many other States, reposing the same confidence in one another, have before and since accepted the same or similar system of arbitration in so many treaties or conventions. If, in 1926, the two contracting Parties had entertained any doubt as to the efficacy of arbitration by ad hoc commissions and had desired to ensure compulsory arbitration by a permanently established international Court in- the case of disputes concerning claims based on the Treaty of 1886, they could have stipulated in the Treaty or in the Declaration, with the greatest ease and simplicity, that the method of arbitration provided for in Article 29 shall also apply to such disputes. The fact that they did not choose to do so shows clearly that it simply never occurred to them that the arbitration clause contained in the Declaration should be itself subject to a different method of arbitration.

Even assuming that the Declaration does form a part of the Treaty of 1926, the clause of arbitration in the Declaration must be [p88] regarded as a specific provision, since it deals with a specific kind of dispute, whereas the arbitration clause in Article 29 must be regarded as a general provision, since it covers disputes relating to all the provisions of the Treaty. It is a well-recognized principle of interpretation that a specific provision prevails over a general provision. Therefore, even if the Declaration had actually been written into the Treaty as an additional article, it must, nevertheless, in the absence of any indication of intention to the contrary, form an exception to the applicability of Article 29.

It is thus clear that this Court, as the substitute for the Permanent Court of International Justice, cannot exercise jurisdiction conferred upon it by Article 29 of the Treaty of 1926, in a dispute relative to the interpretation or application of the Declaration of 1926.

(Signed) Hsu Mo.

 
     

 

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