|
[p7]
Objection to the Jurisdiction of the Court Made by His Britannic Majesty's
Government.
[1] [p5] The Court, composed as above, having heard the observations and
conclusions of the Parties, delivers the following judgment:
The facts:
[2] The Government of the Greek Republic, by an application instituting
proceedings filed with the Registry of the Court on May 13th, 1924, in
conformity with Article 40 of the Statute and Article 35 of the Rules of
Court, has submitted to the Permanent Court of International Justice a suit
arising out of the alleged refusal on the part of the Government of
Palestine, and consequently also on the part of His Britannic Majesty's
Government, since the year 1921 to recognise to their full extent the rights
acquired by M. Mavrommatis, a Greek subject, under contracts and agreements
concluded by him with the Ottoman authorities in regard to concessions for
certain public works to be constructed in Palestine.
[3] This application concludes with a request that the Court may be pleased
to give judgment to the effect that the Government of Palestine and
consequently also the Government of His Bri-tannic Majesty, have, since
1921, wrongfully refused to recognise to their full extent the rights
acquired by M. Mavrommatis under the contracts and agreements concluded by
him with the Ottoman authorities in regard to the works specified above, and
that the Government of His Britannic Majesty shall make reparation for the
consequent loss incurred by the said Greek subject, a loss which is
estimated at £234,339 together with interest at six per cent as from July
20th, 1923, the date on which this estimate was made.
[4] The considerations leading up to these conclusions have been developed
in the Case filed with the Court by the claimant on May 23rd, 1924. It is
therein specified that the Greek Government, abandoning a portion of its
original claim relating to the irrigation works in the Jordan Valley, asks
for judgment only in respect of two groups of concessions, namely : those
relating to the construction and working of an electric tramway system, the
supply of electric light and power and of drinking water in [p8] the city of
Jerusalem, and those relating to the construction and working of an electric
tramway system, the supply of electric light and power and of drinking water
in the city of Jaffa and the irrigation of its gardens from the waters of
El-Hodja.
[5] On the grounds stated in the Case, the Greek Government asks the Court
to give judgment as follows:
The Jerusalem Concessions:
(1) That, these concessions having begun to be put into operation, the
British Government, in its capacity as Mandatory for Palestine, is bound to
maintain them and to agree to their adaptation to the new economic
conditions of the country, or to redeem them by paying to the claimant
reasonable compensation;
(2) that, having in fact already, made its choice, by rendering impossible,
directly or indirectly, the carrying out of the works for which the claimant
holds a concession, it must pay him compensation;
(3) that, taking into account all the various elements of the loss
occasioned to the claimant, he shall receive fair and reasonable
compensation by means of the payment to him of the sum of £121,045, together
with interest at six per cent from July 20th, 1923, until the date on which
judgment is given.
The Jaffa Concessions:
(1) that the fact that these were granted after October 29th, 1914, does not
justify the British Government in refusing to recognise them;
(2) that the fact that they were not confirmed by Imperial iradé, which is a
simple formality not to be withheld at discretion, does not deprive them of
their international value;
(3) that, though the British Government, in its capacity as Mandatory for
Palestine, is at liberty not to maintain them, it is nevertheless under an
international obligation to compensate their holder for the loss which it
has inflicted upon him by deciding -as it has done -not to allow him to
proceed with them;
(4) that, taking into account all the elements of the loss thus sustained by
the claimant, he shall receive fair and reasonable compensation by means of
the payment to him of the sum of [p9] £113,294, together with interest at
six per cent from July 20th, 1923, until the date on which judgment is
given.
[6] The application instituting proceedings was, in accordance with Article
40 of the Statute, communicated to the Government of His Britannic Majesty
on May 15th, 1924, and the Greek Case was transmitted to that Government on
May 31st. On June 3rd, His Britannic Majesty's Government informed the Court
that it found itself obliged to make a preliminary objection on the ground
that the Court had no jurisdiction to entertain the proceedings in question.
In agreement with His Britannic Majesty's Government, the President fixed
June 16th as the date for the filing of the objection to the Court's
jurisdiction.
[7] On that date, the Agent of His Britannic Majesty's Government filed with
the Registry of the Court a preliminary objection to the Court's
jurisdiction and a preliminary counter-case in the proceedings respecting
the Mavrommatis Palestine Concessions.
[8] The objection concludes with a request that the Court may be pleased to
give judgment on the preliminary objection filed on behalf of His Britannic
Majesty's Government and, without entering at the present stage upon the
merits of the case, to dismiss the proceedings instituted by the Greek
Government; whilst in conclusion of the preliminary counter-case it is
submitted on behalf of His Britannic Majesty's Government that the
proceedings instituted by the Government of the Greek Republic should be
dismissed upon the ground that the Court has no jurisdiction to entertain
them.
[9] The Agent of the Government of the Greek Republic (having been informed
of the filing of the objection made by the British Government) requested
permission, on behalf of his Government, to make a written reply to this
objection.
[10] He was requested to submit his reply on June 30th.
[11] Accordingly, on the day fixed, the Greek Agent filed his Government's
reply to the British preliminary counter-case concerning the Court's
jurisdiction.
[12] This reply, in conclusion, requests the Court to declare that the
objection to the jurisdiction of the Court has not been established and to
dismiss it ; and to reserve the suit for judgment on its merits.
[13] In support of their conclusions, the Parties have handed in to the
Court a number of documents as annexes to the case or preliminary
counter-case. [p10]
[14] Furthermore, the Court has heard, in the course of public sittings held
on July 15th and 16th, 1924, the statements of H.E. M. Politis, counsel for
the applicant Government, and of the Agent of the respondent Government.
***
The Law.
[15] Before entering on the proceedings in the case of the Mavrommatis
concessions, the Permanent Court of International Justice has been made
cognisant of an objection taken by His Britannic Majesty's Government to the
effect that the Court cannot entertain the proceedings.
The Court has not to ascertain what are, in the various codes of procedure
and in the various legal terminologies, the specific characteristics of such
an objection; in particular it need not consider whether "competence" and
"jurisdiction", incompétence and fin de non-recevoir should invariably and
in every connection be regarded as synonymous expressions. It will suffice
to observe that the extremely wide bearing of the objection upon which,
before the case can be argued on its merits, the Court has to take a
decision (without, however, in so doing, in any way prejudging the final
outcome of such argument) has been indicated by the Parties themselves in
their preliminary counter-case and reply or in the course of the oral
statements made on their behalf. It appears in fact from the documents
before the Court and from the speeches of Sir Cecil Hurst and of H.E. M.
Politis that the preliminary question to be decided is not merely whether
the nature and subject of the dispute laid before the Court are such that
the Court derives from them jurisdiction to entertain it, but also whether
the conditions upon which the exercise of this jurisdiction is dependent are
all fulfilled in the present case.
[16] The general basis of the jurisdiction given to the Permanent Court of
International Justice is set down in Articles 34 and 36 of the Statute,
according to which, in the first place, only States. or Members of the
League of Nations may appear before it and, in the second place, it has
jurisdiction to hear and determine "all cases which the Parties refer to it
and all matters specially provided for in Treaties and Conventions in
force".
[17] In the application instituting proceedings the Greek Government relies
on the following:[p12]
Article 9 of Protocol XII annexed to the Peace Treaty of Lausanne of July
24th, 1923;
Articles 11 and 26 of the Mandate for Palestine conferred on His Britannic
Majesty on July 24th, 1922;
Article 36, first paragraph, and Article 40 of the Statute of the Court and
Article 35, paragraph 2, of the Rules of Court.
[18] The Parties in the present case agree that Article 26 of the Mandate
falls within the category of "matters specially provided for in Treaties and
Conventions in force" under the terms of Article 36 of the Statute and the
British Government does not dispute the fact that proceedings have been duly
initiated in accordance with Article 40 of the Statute.
[19] Article 26 of the Mandate contains the following clause:
"The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations."
[20] The question therefore arises whether the conditions laid down by
Article 26 in regard to the acceptance of the Court's jurisdiction, the
absence of which would render such acceptance inoperative, are fulfilled in
the case before the Court.
[21] Before considering whether the case of the Mavrommatis concessions
relates to the interpretation of application of the Mandate and whether
consequently its nature and subject are such as to bring it within the
jurisdiction of the Court as defined in the article quoted above, it is
essential to ascertain whether the case fulfils all the other conditions
laid down in this clause. Does the matter before the Court constitute a
dispute between the Mandatory and another Member of the League of Nations ?
Is it a dispute which cannot be settled by negotiation ?
I.
[19] A dispute is a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons. The present suit between
Great Britain and Greece certainly possesses these characteristics. The
latter Power is asserting its own rights by [p12] claiming from His
Britannic Majesty's Government an indemnity on the ground that M.
Mavrommatis, one of its subjects, has been treated by the Palestine or
British authorities in a manner incompatible with certain international
obligations which they were bound to observe.
[20] In the case of the Mavrommatis concessions it is true that the dispute
was at first between a private person and a State -i.e. between M.
Mavrommatis and Great Britain. Subsequently, the Greek Government took up
the case. The dispute then entered upon a new phase; it entered the domain
of international law, and became a dispute between two States. Henceforward
therefore it is a dispute which may or may not fall under the jurisdiction
of the Permanent Court of International Justice.
[21] Article 26 of the Mandate, in giving jurisdiction to the Permanent
Court of International Justice does not, in fact, merely lay down that there
must be a dispute which requires to be settled. It goes on to say that the
dispute must be between the Mandatory and another Member of the League of
Nations. This is undoubtedly the case in the present suit, since the
claimant State Greece, like Great Britain, has from the outset belonged to
the League of Nations. It is an elementary principle of international law
that a State is entitled to protect its subjects, when injured by acts
contrary to international law committed by another State, from whom they
have been unable to obtain satisfaction through the ordinary channels. By
taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights -its right to ensure, in the person of its
subjects, respect for the rules of international law.
[22] The question, therefore, whether the present dispute originates in an
injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an international
tribunal, in the eyes of the latter the State is sole claimant. The fact
that Great Britain and Greece are the opposing Parties to the dispute
arising out of the Mavrommatis concessions is sufficient to make it a
dispute between two States within the meaning of Article 26 of the Palestine
Mandate. [p13]
II.
[23] The second condition by which this article defines and limits the
jurisdiction of the Permanent Court in questions arising out of the
interpretation and application of the Mandate, is that the dispute cannot be
settled by negotiation. It has been contended that this condition is not
fulfilled in the present case ; and leaving out of account the
correspondence previous to 1924 between Mavrommatis or his solicitors and
the British Government, emphasis has been laid on the very small number and
brevity of the subsequent communications exchanged between the two
Governments, which communications appear to be irreconcilable with the idea
of negotiations properly so-called. The true value of this objection will
readily be seen if it be remembered that the question of the importance and
chances of success of diplomatic negotiations is essentially a relative one.
Negotiations do not of necessity always presuppose a more or less lengthy
series of notes and despatches; it may suffice that a discussion should have
been commenced, and this discussion may have been very short; this will be
the case if a dead lock is reached, or if finally a point is reached at
which one of the Parties definitely declares himself unable, or refuses, to
give way, and there can therefore be no doubt that the dispute cannot be
settled by diplomatic negotiation. This will also be the case, in certain
circumstances, if the conversations between the Governments are only the
continuation of previous negotiations between a private individual and a
government.
[24] It is true that the State does not substitute itself for its subject ;
it is asserting its own rights and, consequently, factors foreign to the
previous discussions between the individual and the competent authorities
may enter into the diplomatic negotiations. But it is equally true that if
the diplomatic negotiations between the Governments commence at the point
where the previous discussions left off, it may well happen that the nature
of the latter was such as to render superfluous renewed discussion of the
opposing contentions in which the dispute originated. No general and
absolute rule can be laid down in this respect. It is a matter for
consideration in each case. In the case now before the Court, the
negotiations between M. Mavrommatis or his representatives and the Palestine
or British authorities had covered precisely the points on which the Greek
Government decided to rely, and did in fact rely as against [p14] the
British Government with regard to the recognition of the Mavrommatis
concessions. And the negotiations between the concessions holder and the
authorities were throughout conducted on the basis of international
instruments subsequently relied on by the Greek Government -when it
approached His Britannic Majesty's Government. That this is the case appears
from the whole of the correspondence placed before the Court and more
especially from the letter sent by the Foreign Office on April 1st, 1924 to
the Greek Legation in London, in which all the questions which had
previously been discussed between the interested person and the Colonial
Office were recapitulated. One proof that the Greek Government took this
view is the fact that it had associated itself with the steps taken by its
subject by transmitting to the Foreign Office the letter sent to the Greek
Legation by M. Mavrommatis on December 18th, 1922. The Greek Government
moreover had already realized from two letters, dated January 22nd and
February 2nd, 1923, sent by Mr. G. Agar Robartes of the Foreign Office to
M.Melas, Secretary of the Greek Legation in London, that the British
Government was indisposed to enter into direct negotiation with it regarding
the claim of its subject. A year later, on January 26th, 1924, the Greek
Legation in London wrote to the Foreign Office in order to ascertain whether
in the opinion of the British Government, "M. Mavrommatis' claims could not
be satisfactorily met" or submitted to arbitration either by a member of the
High Court of Justice or by a tribunal of which the president, failing
agreement between the Parties, should be appointed by the British Government
itself; and the note of His Britannic Majesty's Secretary of State for
Foreign Affairs, dated April 1st, 1924, was regarded by Greece as a
definitely negative reply.
[25] This note moreover is also of great importance from another point of
view. For it tends to show the official character of the correspondence
which had taken place regarding the Mavrommatis concessions between the
Greek Legation in London and the Foreign Office or certain of their
officials. Thus the note of the Secretary of State refers expressly to the
note -above mentioned -signed by M. Collas on January 26th, 1924; and the
latter in its turn refers to the letter sent by Mr. Robartes to M. Melas on
February 2nd, 1923. It should also be observed that all this correspondence
bears the registration numbers of the Legation and of the Foreign Office.
[p15]
[26] The matter had reached this stage when the Greek Government,
considering that there was no hope of effecting a settlement by further
negotiation and acting upon a suggestion made by M. Mavrommatis' solicitors
in their letter of April 1st, 1924, to the Greek Legation in London, sent to
the Foreign Office a dispatch dated May 12th, 1924, informing His Britannic
Majesty's Government of its decision to refer the dispute to the Court, a
decision which -doubtless in view of the approaching opening of the Court's
ordinary Session -it proceeded to carry out on the following day, when it
filed the application instituting proceedings with the Registry.
[27] The Court realises to the full the importance of the rule laying down
that only disputes which cannot be settled by negotiation should be brought
before it. It recognises, in fact, that before a dispute can be made the
subject of an action at law, its subject matter should have been clearly
defined by means of diplomatic negotiations. Nevertheless, in applying this
rule, the Court cannot disregard, amongst other considerations, the views of
the States concerned, who are in the best position to judge as to political
reasons which may prevent the settlement of a given dispute by diplomatic
negotiation. When negotiations between the private person and the
authorities have already -as in the present case -defined all the points at
issue between the two Governments, it would be incompatible with the
flexibility which should characterise international relations to require the
two Governments to reopen a discussion which has in fact already taken place
and on which they rely. It should be observed in this connection that the
Foreign Office, in its reply of April 1st, states that the competent
department to which the negotiations had been entrusted had fully and
carefully examined the question.
III.
[28] The Court has now to consider the condition which Article 26 of the
Mandate imposes upon its jurisdiction when laying down that the dispute must
relate "to the interpretation or the application of the provisions of the
Mandate". The dispute may be of any nature; the language of the article in
this respect is as comprehensive as possible (any dispute whatever -tout
différend, quel qu'il [p16] soit); but in every case it must relate to the
interpretation or the application of the provisions of the Mandate.
[29] In the first place, the exact scope must be ascertained of the
investigations which the Court must, under Article 36, last paragraph, of
the Statute, pursue in order to arrive at the conclusion that the dispute
before it does or does not relate to the interpretation or the application
of the Mandate, and, consequently, is or is not within its jurisdiction
under the terms of Article
26. Neither the Statute nor the Rules of Court contain any rule regarding
the procedure to be followed in the event of an objection being taken in
limine litis to the Court's jurisdiction. The Court therefore is at liberty
to adopt the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of
international law.
[30] For this reason the Court, bearing in mind the fact that its
jurisdiction is limited, that it is invariably based on the consent of the
respondent and only exists in so far as this consent has been given, cannot
content itself with the provisional conclusion that the dispute falls or not
within the terms of the Mandate. The Court, before giving judgment on the
merits of the case, will satisfy itself that the suit before it, in the form
in which it has been submitted and on the basis of the facts hitherto
established, falls to be decided by application of the clauses of the
Mandate. For the Mandatory has only accepted the Court's jurisdiction for
such disputes.
[31] It is true that in Advisory Opinion No. 4 regarding the Nationality
Decrees in Tunis and Morocco (French Zone), the Court, which had to take a
decision upon a plea to the jurisdiction, declared that the jurisdiction of
the Council of the League of Nations must be considered to exist provided
that the legal grounds (titres) of an international character advanced by
the Parties are such as to justify the provisional conclusion that they are
of juridical importance for the dispute.
[32] In that case, the plea was made under paragraph 8 of Article 15 of the
Covenant and was directed against the very general jurisdiction given by the
first paragraph to the Council of the League of Nations covering all
disputes likely to lead to a rupture. Whereas in the present case, the
objection to the Court's jurisdiction taken by the British Government
relates to a jurisdiction limited to [p17] certain categories of disputes,
which are determined according to a legal criterion (the interpretation and
application of the terms of the Mandate), and tends therefore to assert the
general rule that States may or may not submit their disputes to the Court
at their discretion.
[33] The dispute brought before the Court by the Greek Government's
application relates to the question whether the Government of Palestine and
consequently also the British Government have, since 1921, wrongfully
refused to recognise to their full extent the rights acquired by M.
Mavrommatis under the contracts and agreements concluded by him with the
Ottoman authorities in regard to certain public works.
[34] In support of its application, the Greek Government cites Article 11 of
the Mandate, which runs as follows:
"The Administration of Palestine shall take all necessary measures to
safeguard the interests of the community in connection with the development
of the country, and, subject to any international obligations accepted by
the Mandatory, shall have full power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established therein. It
shall introduce a land system appropriate to the needs of the country,
having regard among other things to the desirability of promoting the close
settlement and intensive cultivation of the land.
"The Administration may arrange with the Jewish Agency mentioned in Article
4 to construct or operate, upon fair and equitable terms, any public works,
services and utilities, and to develop any of the natural resources of the
country, in so far as these matters are not directly undertaken by the
Administration. Any such arrangements shall provide that no profits
distributed by such agency, directly or indirectly, shall exceed a
reasonable rate of interest on the capital, and any further profits shall be
utilised by it for the benefit of the country in a manner approved by the
Administration."
[35] The question to be solved is whether the dispute above mentioned should
be dealt with on the basis of this clause. Taken as a whole, Article 11
purports to regulate the powers of the Palestine Administration as regards:
a) public ownership or control of the natural [p18] resources of the country
or of the public works, services and utilities; b) the introduction of a
land system appropriate to the needs of the country and, c) arrangements
with the Jewish agency to construct or operate, upon fair and equitable
terms, any public works, services and utilities and to develop any of the
natural resources of the country.
[36] The Court feels that the present judgment should be based principally
on the first part of paragraph 1 of Article 11.
[37] After an introductory phrase laying down in general terms the
fundamental duty of the Administration, namely to "take all necessary
measures to safeguard the interests of the community in connection with the
development of the country", Article II continues to the effect that the
Administration of Palestine "shall have full power to provide for public
ownership or control of any of the natural resources of the country or of
the public works, services and utilities established or to be established
therein"-aura pleins pouvoirs pour décider quant à la propriété ou au
contrôle public de toutes les ressources naturelles du pays, ou des travaux
et services d'utilité publique déjà établis ou à y établir.
[38] The Court considers that, according to the French version, the powers
thus attributed to the Palestine Administration may cover every kind of
decision regarding public ownership and every form of "controle" which the
Administration may exercise either as regards the development of the natural
resources of the country or over public works, services and utilities. An
interpretation restricting these powers to certain only of the measures
which the Administration may take in regard to public ownership or to
certain only of the ways in which public "controle" may be exercised over
the activities in question, though not completely excluded by the very
general wording of the French text, is not the natural interpretation of its
terms : that is to say that the right to grant concessions with a view to
the development of the natural resources of the country or of public works,
services and utilities, as also the right to annul or cancel existing
concessions, might fall within the terms of the French version of the clause
under consideration.
[39] The English version, however, seems to have a more restricted meaning.
It contemplates the acquisition of "public ownership" or "public control"
over any of the natural resources of the country [p19] or over the public
works, services and utilities established or to be established therein.
[40] Since no question of "public ownership" is raised in the present case,
the Court has devoted its whole attention to the meaning of the expression
"public control". It has ascertained that the word "control" may have a very
wide sense but that, used in conjunction with the expression "public
ownership", it would appear rather to mean the various methods whereby the
public administration may take over, or dictate the policy of, undertakings
not publicly owned.
[41] The Court is of opinion that, where two versions possessing equal
authority exist one of which appears to have a wider bearing than the other,
it is bound to adopt the more limited interpretation which can be made to
harmonise with both versions and which, as far as it goes, is doubtless in
accordance with the common intention of the Parties. In the present case
this conclusion is indicated with especial force because the question
concerns an instrument laying down the obligations of Great Britain in her
capacity as Mandatory for Palestine and because the original draft of this
instrument was probably made in English.
[42] The Mavrommatis concessions in themselves are outside the scope of
Article 11, but the question before the Court is whether, by granting the
Rutenburg concessions - which cover at least a part of the same ground - the
Palestine and British authorities have disregarded international obligations
assumed by the Mandatory, by which obligations Greece is entitled to
benefit.
[43] The connection between the Rutenberg and Mavrommatis concessions
arising out of the fact that they partially overlap, may be considered as
admitted because the Palestine and British authorities, when the question of
the validity of the latter concessions was brought up, invited the
interested party to come to an understanding with the Zionist organisation
and with Mr. Rutenberg.
[44] If the Rutenberg concessions fall within the scope of Article 11, the
dispute undoubtedly relates to that article.
[45] In this connection, the Court has to decide whether the grant of the
Rutenberg concessions has given rise to the acquisition or exercise of
"public control" in the sense contemplated above.
[46] If the expression "public control" is contrasted with "private control"
in the very restricted sense of a public undertaking as opposed to a private
undertaking controlled by the public [p20] authorities, the Rutenberg
concessions cannot be considered as having conferred upon the Palestine
Administration "public control" over the services under concession.
[47] But it does not appear to be correct to maintain that the English
expression "public control only covers cases where the Government takes over
and itself directs undertakings of one kind or another. The expression is
also used to indicate certain forms of action taken by the State with regard
to otherwise private undertakings. Even in such cases, the world "control",
in the sense in which it is generally used, cannot be employed to describe
practically all acts of public authority; "control" always means measures of
a special character in connection with an economic policy consisting in
subordinating, in one way or another, private enterprise to public
authority. This wider meaning of the English expression appears to be the
only one which does not nullify the expression contrôle public in the French
version : it seems hardly possible to read the latter as referring
exclusively to cases where a public administration itself takes in hand an
undertaking. It is in this sense that even the grant of a concession of
public utility to an individual or to a company may be accompanied by
measures which amount to an exercise of "public control".
[48] In this respect it should be observed that Article 28 of the Rutenberg
concessions expressly lays down that "the undertaking of the company under
this concession shall be recognised as a public utility Body under
Government control" : it would not be correct to interpret this clause as
reserving to the Government the right, should it see fit, to assume control
of the undertaking. This "Government control" appears rather to be connected
with the recognition of the undertaking as a public utility body. Moreover,
it is clearly of a different nature to the supervision which the Palestine
Administration may exercise over the financial operations of the company
under Article 36 of the concessions.
[49] Again it may be remarked that the concessions in question have been
granted to a company which Mr. Rutenberg undertakes to form and the statutes
of which, according to Article 2 of the agreement concerning the grant of
the concession for the Jordan and Article 34 of the Jaffa concession, were
to be approved by the High Commissioner for Palestine in agreement with the
Jewish agency mentioned in the Mandate. [p21]
[50] In order to form an idea of the significance of this clause, it must be
remembered that this Jewish agency is described as follows in Article 4 of
the Mandate:
"An appropriate Jewish agency shall be recognised as a public body for the
purpose of advising and co-operating with the Administration of Palestine in
such economic, social and other matters as may affect the establishment of
the Jewish national home and the interests of the Jewish population in
Palestine, and, subject always to the control of the Administration, to
assist and take part in the development of the country.
"The Zionist organisation... shall be recognised as such agency." «Un
organisme juif convenable sera officiellement reconnu et aura le droit de
donner des avis à l'Administration de la Palestine et de coopérer avec elle
dans toutes questions économiques, sociales et autres, susceptibles
d'affecter l'établissement du foyer national juif et les intérêts de la
population juive en Palestine, et, toujours sous réserve du contrôle de
l'Administration, d'aider et de participer au développement du pays.
«L'organisation sioniste sera reconnue comme étant l'organisme visé
ci-dessus . . . . »
[51] This clause shows that the Jewish agency is in reality a public body,
closely connected with the Palestine Administration and that its task is to
co-operate, with that Administration and under its " control, in the
development of the country. The words used in paragraph 2 of Article n to
indicate the action of the Jewish agency are the same as those used in the
first paragraph to indicate the use to be made of the powers granted to the
Palestine Administration. It is obviously a program of economic policy which
the Administration may carry out, either directly, or through a public body
acting under its control.
[52] The conclusion which appears to follow from the preceding argument is
that the Rutenberg concessions constitute an application by the
Administration of Palestine of the system of, "public control" with the
object of developing the natural resources of the country and of operating
public works, services and utilities. Thus envisaged, these concessions may
fall within the scope of Article II of the Mandate.
[53] But even if any doubt on this point remained, the Court believes [p22]
that it should disregard it in view of a passage in the Preliminary
Counter-case filed by His Britannic Majesty's Government on June 16th, 1924,
containing a declaration which, no matter in what connection it was made,
refers directly to the relations between the Rutenber.g concessions and
Article 11 of the Mandate. This passage runs as follows:
"The concessions granted to Mr. Rutenberg in September, 1921, for the
development of electrical energy and water power in Palestine (Annex to the
Greek Case, pp. 21-52 } were obliged to conform to this Article 11, and it
would have been open to any Member of the League to question provisions in
those concessions which infringed the international obligations which His
Britannic Majesty as Mandatory for Palestine had accepted.” «Les concessions
accordées enseptembre 1921 à M. Rutenberg pour le développement de l'énergie
électrique et de laforce hydraulique en Palestine (Annexe au Mémoire grec,
pages 21 à 52) ont obligatoirement dû être faites en conformité de l'article
11 et il eût été loisible à tout Membre de la Société de mettre en question
toute stipulation de ces concessions qui eût porté atteinte aux obligations
internationales assumées par Sa Majesté britannique en qualité de Mandataire
pour la Palestine. »
[54] The express reference to the "international obligations accepted by the
Mandatory" makes it clear that this statement refers to paragraph 1 of
Article 11.
[55] Again the British Agent's oral pleading contains the following:
"Article 11 provides in the first part which I have read, that the
Government of Palestine may itself develop these natural resources. It shall
have full power to provide for public ownership or control of any of the
natural resources of the country, subject to the international obligations
accepted by the Mandatory. Then comes a second paragraph which enables the
Administration to "arrange with the Jewish agency" -that is the Zionist
Organisation which had been mentioned in an earlier portion -"to construct
or operate, upon fair and equitable terms, any public works, services and
utilities, and to develop any of the natural resources of the country", in
so far as these [p23] matters are not directly undertaken by the
Administration. It will be noticed that there is no repetition in that
second paragraph of those words "subject to any international obligations
accepted by the Mandatory", but I think it is a limitation upon the powers
of the Mandatory which is so obvious that it is implied in the second
paragraph just as much as in the first. The Mandatory cannot, in making his
arrangements for the development of the natural resources of the country,
ignore the international obligations which he has accepted."
***
[56] The powers accorded under Article 11 to the Administration of Palestine
must, as has been seen, be exercised "subject to any international
obligations accepted by the Mandatory". This qualification was a necessary
one, for the international obligations of the Mandatory are not, ipso facto,
international obligations of Palestine. Since Article 11 of the Mandate
gives the Palestine Administration a wide measure of autonomy, it was
necessary to make absolutely certain that the powers granted could not be
exercised in a manner incompatible with certain international engagements of
the Mandatory. The obligations resulting from these engagements are
therefore obligations which the Administration of Palestine must respect ;
the Mandatory is internationally responsible for any breach of them since,
under Article 12 of the Mandate, the external relations of Palestine are
handled by it. It has been contended on behalf of the Greek Government that
the Administration of Palestine, by arranging with the Jewish agency for the
construction or operation of the works or of a portion of the works for
which M. Mavrommatis already held concessions and not paying the latter
compensation, had disregarded the international obligations of the
Mandatory. At the present stage of the proceedings the question whether
there really has been a breach of these obligations can clearly not be gone
into; to do so would involve a decision as to the responsibility of the
respondent, a thing which the two Governments concerned do not at the moment
ask the Court to do. But, in accordance with the principles set out above,
the Court is constrained at once to ascertain whether the international
obligations mentioned in Article 11 affect the merits of the case and
whether any breach of them would involve a breach of the provisions of this
article. [p24]
[57] There has been much discussion as to what international obligations of
the Mandatory's must be respected by the Administration of Palestine. The
Greek Government appears to hold that these are all international
obligations in general; on the other hand the submission of the British
Government in its preliminary Counter-case is that only various beneficent
principles are intended, to the maintenance of which the League of Nations,
on whose behalf His Britannic Majesty exercises the mandate over Palestine,
is pledged, such as freedom of transit and communications, equality of
commercial opportunity for all Members of the League, suppression of the
arms traffic, etc. It is not however certain whether this submission was
maintained in the oral proceedings.
[58] The Court, whilst abstaining from giving an opinion on these opposing
contentions, feels constrained at once to make certain reservations in
regard to them. The former does not appear to take sufficient account of the
peculiar importance attaching to the words "accepted by the Mandatory",
which obviously contemplate obligations contracted, even though, in a sense,
it may be said that the whole body of international law has been accepted by
States. Moreover, there would appear to be no reason for such a clause in
this connection. The second interpretation is also unsupported by any
argument and it is not easy to see any connection between it and the subject
matter of the clause of which it forms part. In the opinion of the Court,
the international obligations mentioned in Article �are obligations
contracted having some relation to the powers granted to the Palestine
Administration under the same article.
[59] The Court has been informed that in the draft of the Mandate, prepared
when it was thought that the Treaty of Sévres would shortly be ratified, the
clause under discussion was worded as follows : "subject to Article 311 of
the Treaty of Peace with Turkey", the article of the Mandate being in other
respects identical with the final text. Later, when it became clear that the
Treaty of Sévres would never come into force, whilst the new Peace Treaty
with Turkey had not yet been drafted, in order to avoid delay in the
adoption of the Mandate, the reference to the Treaty of Sévres was replaced
by the words "international obligations accepted by the Mandatory". This
phrase therefore -whatever its scope may be in other directions -includes at
all events [p25] the provisions which, in the future Peace Treaty with
Turkey, were to take the place of the provisions of Article 311 of the
Treaty of Sévres.
[60] This article which is the second of Section VI (Companies and
Concessions) of Part IX
(Economic Clauses) of that Treaty, is worded as follows:
"In territories detached from Turkey to be placed under the authority or
tutelage of one of the Principal Allied Powers, Allied nationals and
companies controlled by Allied groups or nationals holding concessions
granted before October 29th, 1914, by the Turkish Government or by any
Turkish local authority shall continue in complete enjoyment of their duly
acquired rights, and the Power concerned shall maintain the guarantee
granted or shall assign equivalent ones.
"Nevertheless, any such Power, if it considers that the maintenance of any
of these concessions should be contrary to the public interest, shall be
entitled, within a period of six months from the date on which the territory
is placed under its authority or tutelage, to buy out such concession or to
propose modifications therein ; in that event it shall be bound to pay to
the concessionnaire equitable compensation in accordance with the following
provisions.
"If the Parties cannot agree on the amount of such compensation, it will be
determined by Arbitral Tribunals composed of three members, one designated
by the State of which the concessionnaire or the holders of the majority of
the capital in the case of a company is or are nationals, one by the
Government exercising authority in the territory in question, and the third
designated, failing agreement between the Parties, by the Council of the
League of Nations.
"The Tribunal shall take into account, from both the legal and equitable
standpoints, all relevant matters, on the basis of the maintenance of the
contract adapted as indicated in the following paragraph.
"The holder of a concession which is maintained in force [p26] shall have
the right, within a period of six months after the expiration of the period
specified in the second paragraph of this article, to demand the adaptation
of his contract to the new economic conditions, and in the absence of
agreement direct with the Government concerned, the decision shall be
referred to the Arbitral Commission provided for above."
[61] As Article 311 of the Treaty of Sévres dealt with concessions in
territories detached from Turkey and as that article is now replaced by
Protocol XII of the Treaty of Lausanne, it follows that "the international
obligations accepted by the Mandatory", referred to in Article 11 of the
Mandate, certainly include the obligations arising out of Protocol XII of
the Lausanne Treaty.
[62] These obligations limit the powers of the Palestine Administration to
provide for public ownership or control of any of the natural resources of
the country or of the public works, services and utilities established or to
be established therein. Since -as has been already stated -the Rutenberg
concessions fall within the scope of Article 11 of the Mandate, it is
obvious that the Palestine Administration is, as regards these concessions,
bound to respect obligations which Great Britain has accepted under Protocol
XII. If the Administration has, by granting the Rutenberg concessions,
committed a breach of these obligations, there has been an infringement of
the terms of Article 11 of the Mandate which may be made the subject of an
action before the Court under Article 26.
[63] The Court considers that the reservation made in Article 11 regarding
international obligations is not a mere statement of fact devoid of
immediate legal value, but that, on the contrary, it is intended to afford
these obligations within the limits fixed in the article, the same measure
of protection as all other provisions of the Mandate.
[64] It now only remains to consider whether there are any international
obligations arising out of Protocol XII of Lausanne -hereinafter called
"Protocol XII" -which affect the Mavrommatis concessions.
[65] The instrument in question which is entitled "Protocol relating to
certain Concessions granted in the Ottoman Empire", concerns [p27]
concessionary contracts duly entered into before October 29th, 1914, between
the Ottoman Government or any local authority, on the one hand, and
nationals (including Companies) of. the Contracting Powers, other than
Turkey, on the other. Greece is one of these Powers. The Protocol includes
two sections, the first of which (Articles 1 to 8) concerns concessions in
territories which continue to form part of the Ottoman Empire, whereas the
second (Articles 9 to 13) concerns concessions in territories which have
been detached. The fundamental principle of the Protocol is the maintenance
of concessionary contracts concluded before October 29th, 1914. In
territories detached from Turkey, the State which acquires the territory is
subrogated as regards the rights and the obligations of Turkey; the greater
part of the provisions of Section I also apply to the contracts dealt with
in Section II. Beneficiaries under concessionary contracts entered into
before October 29th, 1914, which, at the time of the coming into force of
the Treaty of Peace, have begun to be put into operation, are entitled to
have their contracts readapted to the new economic conditions; other
beneficiaries are not entitled to such readaptation, but their contracts may
be dissolved at their request and in this case they are entitled, if there
is ground for it, to an equitable indemnity in respect of survey and
investigation work.
[66] It is not disputed that the Jerusalem concessions dated from before
October 29th, 1914, and must therefore be dealt with in accordance with the
terms of Protocol XII. On the other hand, the Parties do not agree on the
question whether the holder of these concessions is entitled to benefit by
the provisions of Article 4 of the Protocol and consequently to claim that
they should be readapted to the new economic conditions ; or whether, in
accordance with Article 6, he is only entitled, to request that the contract
may be dissolved with reasonable compensation for survey and investigation
work. In accordance with the principles enunciated above, the question
whether the Administration of Palestine can withhold from M. Mavrommatis the
readaptation of his Jerusalem concessions, is a question concerning the
interpretation of Article 11 of the Mandate, and consequently the provisions
of Article 26 are applicable to it.
[67] With regard to the Jaffa concessions, the position is as follows: The
preliminary agreements are dated January 27th, 1914, and [p28] on March 6th
of the same year, the Ministry of Public Works at Constantinople authorised
the District of Palestine to grant the proposed concessions. They were not
however converted into concessions duly signed by the Ottoman authorities
until January 28th, 1916. According to an Ottoman law promulgated in the
meantime, they had to be confirmed by Imperial Firman; but this condition
was never fulfilled.
[68] It appears from the documents placed before the Court by the Greek
Government and dealing with the negotiations which had taken place between
those interested, that the Parties do not agree on the question whether
Protocol XII has the effect of depriving concessions obtained in Turkey
after October 29th, 1914, of any value as against States acquiring former
Ottoman territory, or whether, on the contrary, "concessions granted between
October 29th, 1914, and the restoration of peace in countries where Turkey
continued to exercise sovereign power, hold good, in principle, as against
the successor States, though the latter cannot be compelled to maintain
them."
[69] The Court has not to give an opinion on the merits of this contention.
It will suffice to observe that if on the one hand, Protocol XII being
silent regarding concessions subsequent to October 29th, 1914, leaves intact
the general principle of subrogation, it is, on the other hand, impossible
to maintain that this principle falls within the international obligations
contemplated in Article 11 of the Mandate as interpreted in this judgment.
The Administration of Palestine would be bound to recognise the Jaffa
concessions, not in consequence of an obligation undertaken by the
Mandatory, but in virtue of a general principle of international law to the
application of which the obligations entered into by the Mandatory created
no exception.
[70] Though it is true that for the purpose of the settlement of a dispute
of this kind the extent and effect of the international obligations arising
out of Protocol XII must be ascertained, it is equally the fact that the
Court is not competent to interpret and apply, upon a unilateral
application, that Protocol as such, for it contains no clause submitting to
the Court disputes on this subject.
[71] On the other hand, the Court has jurisdiction to apply the Protocol of
Lausanne in so far as this is made necessary by Article 11 of the Mandate.
[p29]
[72] The foregoing reasoning leads to the following conclusions:
(a) That the dispute between the British and Greek Governments concerning M.
Mavrommatis' claim in respect of the Jerusalem concessions must be decided
on the basis of the provisions of Article 11 of the Mandate and that
consequently it is within the category of disputes for which the Mandatory
has accepted the jurisdiction of the Court ;
(b) that, on the other hand, the dispute between these Governments
concerning M. Mavrommatis' claims in respect of the Jaffa concessions has no
connection with Article 11 of the Mandate and consequently does not fall
within the category of disputes for which the Mandatory has accepted the
jurisdiction of the Court.
[73] Although a single application has been filed with the Court for the
payment by Great Britain of a lump sum ; and although the case of the
Mavrommatis concessions, throughout the negotiations preceding the present
action, has, all things considered, been dealt with as one single question,
the fact remains that, in its Case, the Greek Government submitted its claim
under three different headings. One of these -that relating to the Jordan
works -has been abandoned in the Case itself ; the other two relating to
Jerusalem and Jaffa respectively are dealt with separately and separate
claims for compensation are submitted. The Court therefore, having
ascertained that it only has jurisdiction to entertain the claim relating to
Jerusalem, reserves this claim for judgment on its merits and declares that
its jurisdiction does not extend to the claim relating to the works at Jaffa.
IV
[74] Having thus established its jurisdiction under Articles 26 and 11 of
the Palestine Mandate, the Court has to consider whether as concerns the
dispute regarding the Jerusalem concessions, this jurisdiction may not be
limited by another international instrument which might overrule the
provisions of the Mandate.
[75] If a State has recourse to the Court tinder a clause establishing the
latter's compulsory jurisdiction, it must be prepared for the contingency
that the other Party may cite agreements entered into [p30] between the
opposing Parties which may prevent the exercise of the Court's jurisdiction.
Now His Britannic Majesty's Agent in his "Preliminary Objection to the
Jurisdiction of the Court", introducing the "Preliminary Counter-Case",
bases his request for the dismissal of the proceedings instituted by the
Greek Government, firstly on the contention that Article 26 of the Mandate
is not applicable in this case and, secondly on the contention that the only
international instrument dealing with the recognition of concessions in
Palestine is Protocol XII, and that this instrument contains no provision
giving the Permanent Court of International Justice jurisdiction to decide
disputes relating to the interpretation or application of that Protocol.
[76] Though His Britannic Majesty's Agent does not expressly contend that
the Court's jurisdiction under the Mandate - which he disputes - is
incompatible with the provisions of Protocol XII, the Court considers that
the citation of this document by the British Agent must be regarded as one
of the grounds for the objection to the Court's jurisdiction. In the
circumstances, it will therefore not be necessary to consider whether the
Court, whose jurisdiction is dependent on the will of the States concerned
in the dispute, would be entitled, when giving judgment in regard to its
jurisdiction, to consider arguments other than those advanced by the
Parties.
[77] It is certain that Protocol XII is an international instrument, quite
distinct from and independent of the Mandate for Palestine. It deals
specifically and in explicit terms with concessions such as those of M.
Mavrommatis, whereas Article 11 of the Mandate deals with them only
implicitly. Furthermore it is more recent in date that the Mandate. All the
conditions therefore are fulfilled which might make the clauses of the
Protocol overrule those of the Mandate. Although the provisions of the
Mandate possess a special character by reason of the fact that they have
been drawn up by the Council of the League of Nations, neither of the
Parties has attempted to argue that a Member of the League of Nations cannot
renounce rights which he possesses under the terms of the Mandate.
[78] Before considering whether, and. if so, to what extent, the
jurisdiction of the Court under Article 26 might be affected by Protocol
XII, it should be observed that, as has already been established, Article
�refers to Protocol XII. This international instrument [p31] must be
examined by the Court not merely as a body of rules which may limit its
jurisdiction, but also and above all as applicable under the terms of
Article 11 of the Mandate which is the very clause from which the Court
derives its jurisdiction. In this respect, the Protocol is the complement of
the provisions of the Mandate in the same way as a set of regulations
alluded to in a law indirectly form part of it. Nevertheless, from whichever
of the two aspects it is regarded, Protocol XII remains the same and has the
same effect.
[79] The fact that Article II only refers to the Protocol in general terms,
and that the Protocol is more recent in date than the Mandate, does not
justify the conclusion that the Protocol would only be applicable in
Palestine in so far as it is compatible with the Mandate. On the contrary,
in cases of doubt, the Protocol, being a special and more recent agreement,
should prevail.
[80] If this is true, it is equally true that the provisions of the Mandate
and more particularly those regarding the jurisdiction of the Court are
applicable in so far as they are compatible with the Protocol. The
reservation in Article II regarding international obligations makes it quite
clear that the intention is that these are to be respected in their entirety
but that they are not to have any general limitative effect as regards the
provisions of Article 11. The silence of Protocol XII concerning the Mandate
and the jurisdiction of the Permanent Court of International Justice, does
not justify the conclusion that the Parties intended to exclude such
jurisdiction ; for the Protocol does not only deal with mandated
territories, and it includes amongst its signatories a State which is not a
Member of the League of Nations. Though respect for Protocol XII, in so far
as it constitutes a body of rules applicable in Palestine as concerns any
Member of the League of Nations, is assured by Article 11 of the Mandate,
the provision of Article 26 definitely establishing the jurisdiction of the
Court in disputes relating to Article 11 cannot be in any way affected by
the silence of the Protocol regarding this jurisdiction.
[81] The Protocol XII and Article 11 of the Mandate are in no way
incompatible. This may clearly be seen by a comparison of the two documents.
Article 11 does not expressly mention concessions; it is confined to a
definition of certain powers of the Mandatory and of certain of the objects
of the economic policy of the Palestine Administration. On the other hand,
the Protocol deals exclusively [p32] and in detail with concessions ; it
establishes tests according to which certain concessions must be recognised;
it lays down rules for the subrogation of the successor States as regards
the rights and obligations of the Turkish authorities. This is substantive
law. But the Protocol also contains clauses concerning the procedure to be
followed : provision is made for administrative negotiations regarding the
readaptation of certain concessions ; times are fixed within which these
negotiations may take place or certain declarations on the part of
concession holders may be made ; lastly it lays down a special procedure for
the valuation by experts of the indemnities to be granted to concession
holders.
[82] It is these provisions of the Protocol concerning procedure which may
be regarded as incompatible, not with Article 11 of the Mandate, but with
the jurisdiction derived by the Court from that article. This
incompatibility is twofold. In so far as the Protocol establishes in Article
5 a special jurisdiction for the assessment of indemnities, this special
jurisdiction - provided that it operates under the conditions laid down -
excludes as regards these matters the general jurisdiction given to the
Court in disputes concerning the interpretation and application of the
Mandate. On the other hand, the provisions regarding administrative
negotiations and time limits in no way exclude the jurisdiction of the Court
; their effect is merely to suspend the exercise of this jurisdiction until
negotiations have proved fruitless and the times have expired. Subject to
the special powers given to the experts, and to the time limits and the
declarations provided for, the Court's jurisdiction remains intact in so far
as it is based on Article 11. In particular, this is the case as regards
disputes relating to the interpretation and application of the provisions of
the Protocol itself.
[83] Now in the present case it would appear that the dispute between the
two Parties relates to points which are preliminary points as regards the
application of Articles 9, 1 and 4 to 6 of the Protocol. Whilst a difference
of opinion prevails regarding the question whether the Mavrommatis
concessions at Jerusalem fall under the terms of Article 4 or Article 6 of
the Protocol, the provisions relating to the procedure to be followed in
either event cannot be used in argument against the Court's jurisdiction.
For these reasons, neither the jurisdiction of the Court, nor the exercise
of its jurisdiction, is, at the present stage of the dispute, affected by
the [p33] provisions of Protocol XII regarding the special tribunal provided
for in Article 5 of the time limits mentioned in Articles 4 and 6. Nor can
the argument that the concession holder has not exercised the right of
option provided for in Article 4 be used against the Greek Government. The
British Government cannot insist on the exercise of this right so long as it
denies that the consession fall under the terms of that article. The
question remains to be considered whether the negotiations which have taken
place with regard to the application of the Protocol in anticipation of its
coming into force can exert any influence as regards the expiration of the
times in question. This question however cannot arise until it has been
decided whether the time limits applicable to the concession are those laid
down in Article 4 or in Article 6.
V.
[84] The Treaty of Lausanne and Protocol XII were signed by Great Britain
and Greece on July 24th, 1923. When the final negotiations between Greece
and Great Britain in regard to the Mavrommatis concessions took place
(January to April 1924), and at the moment when Greece filed its application
(May 13th; 1924) the deposit of ratifications, which was provided for in
Article 143 of the Treaty of Lausanne, had not taken place. This condition
had to be fulfilled before the Treaty and its supplementary instruments
could come into effect as regards signatories having then ratified it. The
deposit was effected on August 6th, 1924. Already before that date Greece
Greek law of August 25th, 1923 : Greek official Gazette of the same date)
and Great Britain (Treaty of Peace - Turkey - Act of April 15th, 1924) had
taken the necessary steps for ratification of the Treaty. Since the Treaty
is now in force and Protocol XII has become applicable as regards Great
Britain and Greece, it is not necessary to consider what the legal position
would have been if the Treaty had not been ratified at the time of the
Court's judgment.
[85] As His Britannic Majesty's Agent relied on the fact that the Protocol
was not in force, the Court is constrained to state its opinion on the
question whether its jurisdiction may be affected by the fact that this
Protocol is only effective as from August 6th, 1924. [p34]
[86] Protocol XII was drawn up in order to fix the conditions governing the
recognition and treatment by the contracting Parties of certain concessions
granted by the Ottoman authorities before the conclusion of the Protocol. An
essential characteristic therefore of Protocol XII if that its effects
extend to legal situations dating from a time previous to its own existence.
If provision were not made in the clauses of the Protocol for the protection
of the rights recognised therein as against infringements before the coming
into force of that instrument, the Protocol would be ineffective as regards
the very period at which the rights in question are most in need of
protection. The Court therefore considers that the Protocol guarantees the
rights recognised in it against any violation regardless of the date at
which it may have taken place.
[87] In the same connection it must also be considered whether the validity
of the institution of proceedings can be disputed on the ground that the
application was filed before Protocol XII had become applicable. This is not
the case. Even assuming that before that time the Court had no jurisdiction
because the international obligation referred to in Article 11 was not yet
effective, it would always have been possible for the applicant to re-submit
his application in the same terms after the coming into force of the Treaty
of Lausanne, and in that case, the argument in question could not have been
advanced. Even if the grounds on which the institution of proceedings was
based were defective for the reason stated, this would not be an adequate
reason for the dismissal of the applicant's suit. The Court, whose
jurisdiction is international, is not bound to attach to matters of form the
same degree of importance which they might possess in municipal law. Even,
therefore, if the application were premature because the Treaty of Lausanne
had not yet been ratified, this circumstance would now be covered by the
subsequent deposit of the necessary ratifications.
[88] As has been explained above, the dispute relates to points preliminary
to the application of certain provisions of Protocol XII, namely those
dealing with negotiations to be undertaken and time limits to be observed.
For this reason it cannot be argued against the applicant that he is under
an immediate obligation to conform to these provisions. This conclusion is,
in the present case, also pointed to for another reason: the Parties, and
before them, the [p35] persons interested, have by mutual consent and at the
instance of His Britannic Majesty's Government, conducted their
negotiations, since the signature of the Treaty of Lausanne, on the basis of
Protocol XII. There would appear to be precedents for this.
[89] Finally one last point remains which concerns the question of
retrospective effect raised by His Britannic Majesty's Agent. If the Court's
jurisdiction is based on Article n of the Mandate, this clause must be
applicable to the dispute, not merely ratione materice, but also ratione
tempofis.
[90] It must in the first place be remembered that at the time when the
opposing views of the two Governments took definite shape (April 1924), and
at the time when proceedings were instituted, the Mandate for Palestine was
in force. The Court is of opinion that, in cases of doubt, jurisdiction
based on an international agreement embraces all disputes referred to it
after its establishment. In the present case, this interpretation appears to
be indicated by the terms of Article 26 itself where it is laid down that
"any dispute whatsoever .... which may arise" shall be submitted to the
Court. The reservation made in many arbitration'treaties regarding disputes
arising out of events previous to the conclusion of the treaty seems to
prove the necessity for an explicit limitation of jurisdiction and,
consequently, the correctness of the rule of interpretation enunciated
above. The fact of a dispute having arisen at a given moment between two
States is a sufficient basis for determining whether as regards tests of
time, jurisdiction exists, whereas any definition of the events leading up
to a dispute is in many cases inextricably bound up with the actual merits
of the dispute.
[91] Nevertheless, even supposing that it were admitted as essential that
the act alleged by the Applicant to be contrary to the provisions of the
Mandate should have taken place at a period when the Mandate was in force,
the Court believes that this condition is fulfilled in the present case. If
the grant of the Rutenberg Concessions, in so far as they may be regarded as
incompatible, at least in part, with those of Mavrommatis, constitutes the
alleged breach of the terms of the Mandate, this breach, no matter on what
date it was first committed, still subsists, and the provisions of the
Mandate are therefore applicable to it. There is no doubt that the Mandatory
régime was in force when the British Government, in its letter [p36] of
April 1st, 1924, adopted the attitude which, in the opinion of the Greek
Government, rendered it impossible to continue negotiations with a view to a
settlement and, by so doing, imparted to the breach of the Mandate, alleged
by Greece to have occurred, a definitive character.
[92] For these reasons the Court does not feel called to consider whether
the provisions of the Mandate, once they are in force, apply retrospectively
to the period when, according to the Greek application, the British Armies
utilised, after 1918, certain of M. Mavrommatis'surveys, and when the
Palestine Authorities and the Colonial Office, in 1921, failed to regard
themselves as bound to respect the concessions in question to the extent
claimed by M. Mavrommatis.
[93] Without dwelling further on this aspect of the problem, the Court feels
constrained to observe that the Mandate system including the Mandates to be
established for territories formerly belonging to the Ottoman Empire, dates
back to Article 22 of the Covenant of the League of Nations ; furthermore
that the Mandate for Palestine was entrusted to Great Britain by the
Principal Allied Powers in 1920, and, finally, that in 1921 the draft of the
Mandate for Palestine contained a reservation regarding Articles 311 and 312
of the Treaty of Sévres.
[94] FOR THESE REASONS
The Court, having heard both Parties,
Upholds the preliminary objection submitted by His Britannic Majesty's
Government in so far as it relates to the claim in respect of the works at
Jaffa and dismisses it in so far as it relates to the claim in respect of
the works at Jerusalem;
Reserves this part of the suit for judgment on the merits;
And instructs the President to fix, in accordance with Article 33 of the
Rules of Court, the times for the deposit of further documents of the
written proceedings.
[95] Done in French and English, the French text being authoritative. [p37]
[96] At the Peace Palace, The Hague, this thirtieth day of August one
thousand nine hundred and twenty four, in three copies, one of which is to
be placed in the archives of the Court and the others to be forwarded to the
Agents of the Governments of His Britannic Maj esty and of the Greek
Republic respectively.
(Signed) Loder,
President.
(Signed) Å. Hammarskjöld,
Registrar.
[97] Lord Finlay and MM. Moore, de Bustamante, Oda and Pessôa, declaring
that they are unable to concur in the judgment delivered by the Court, and
availing themselves of the right conferred on them by Article 57 of the
Court Statute, have delivered the separate opinions which follow hereafter.
(Initialled) L.
(Initialled) A. H. [p38]
Dissenting Opinion by Lord Finlay.
[98] I regret that I am unable to agree with the Judgment which has just
been delivered, so far as it relates to the Jerusalem Concessions. Three
conditions must be fulfilled in order that the jurisdiction of the Permanent
Court under Article 26 of the Mandate should be compulsory. The dispute must
be a dispute between the Mandatory and another Member of the League of
Nations, it must be a dispute which cannot be settled by negotiation, and it
must be a dispute relating to the interpretation or the application of the
provisions of the Mandate. In my opinion none of these conditions are
fulfilled in the present case.
I.
[99] The Permanent Court takes cognisance only of disputes between nations.
It has no jurisdiction to deal with a dispute one of the Parties to which is
an individual.
[100] Article 26 is express on this head. Its provisions apply only if a
dispute as to the Mandate has arisen between the Mandatory and another
Member of the League of Nations. Of course, there are many cases in which a
genuine dispute between two nations has originated in a wrong alleged to
have been done to the subject of one of these two nations by the other. Out
of the dispute between the individual and the State which is alleged to have
committed the wrong there may develop a dispute between the two nations.
Many international disputes of great gravity have originated in this way. It
is obvious that Article 26 has reference to genuine international disputes
only and that any attempt to bring its provisions into play with reference
to claims of individuals against the Mandatory requires to be carefully
watched.
[101] It is a mistake to suppose that Article 26 can be made applicable to a
dispute between an individual and a mandatory State merely by the
intervention, as litigant, of the government of which that individual is a
subject. To justify proceedings under Article 26, there must have been in
existence before the Requête was filed a dispute between the Mandatory and
another nation Member of the League of Nations. [p39]
[102] Was there such an international dispute in the present case?
[103] The concessions to M. Mavrommatis dated from early in 1914, and in
1921 he urged the Government of Palestine to give effect to them. A very
long correspondence followed in which M. Mavrommatis and his solicitors
urged his rights in respect of these concessions upon the British Colonial
Office. He also got friends to write privately to persons in the British
Foreign Office upon the subject. One of the letters so written, dated
January 26th, 1924, was from a M. Collas who is stated to be in the Greek
Foreign Office and was addressed to some person in the British Foreign
Office. M. Collas in this letter asked whether his correspondent could let
him know the views of His Majesty's Government about M. Mavrommatis' claim,
and whether in their opinion M. Mavrommatis' claim could not be
satisfactorily met. M. Collas added that M. Mavrommatis' solicitors said
that he would be prepared to submit the matter to a Court of Arbitration.
With reference to this note from M. Collas /Supp. Corr. pp. 9 and 10/ the
Foreign Office on April 1st, 1924, wrote to the Greek Legation stating that
the Jerusalem Concessions could be dealt with only under the Concessions
Protocol of the Treaty of Lausanne and were not suitable for arbitration,
and that the Jaffa Concessions could not be recognised being subsequent in
date to October 29th, 1914.
[104] On the same date, April 1st, 1924, Messrs. Westbury, Preston and
Stavridi, M. Mavrommatis' Solicitors, wrote to the Greek Legation /Ibid, pp.
I and II/ enclosing an opinion of
M. Mavrommatis' Counsel, and said: "From this you will see that in the
opinion of Counsel, with which we entirely agree, the only way this question
can be solved is by an appeal to the International Tribunal at The Hague,
and on behalf of M. Mavrommatis we have the honour to suggest that steps
should be taken for this submission to take place without delay." The
enclosure in this letter contained a copy of an opinion of the same date
given by Mr. Purchase, M. Mavrommatis' Counsel, which concludes thus: "We
have tried every possible course, and now it would appear that the only way
by which we can solve this question is to appeal to The Hague Tribunal under
Articles 11 and 26 of the Mandate conferred upon Palestine by right of
international law [p40] and the Treaty of Lausanne. Such appeal cannot be
lodged by virtue of the treaties but only by the Government of which M.
Mavrommatis is a citizen. I therefore suggest that you should request the
Greek Minister to cite the Colonial Office before the Hague Tribunal so that
the matter can be adjudicated upon."
[105] All this shows clearly that there was not any dispute between the
Governments of Greece and Great Britain when the letter of May 12th, 1924,
was written, and the Requête introductive d'instance was lodged. A dispute
between an individual and Great Britain is one thing; a dispute between the
Government of that individual and Great Britain is quite another. There had
been a long dispute between M. Mavrommatis and the British Government; there
had been no dispute between the Greek Government and the British Government.
[106] It is only necessary to quote the first paragraph of the letter of May
12th, 1924, from the Greek Legation to the British Foreign Office /Ibid., p.
13/.
"With reference to your letter of April 1st, No. E. 2816/861/65, I have the
honour to inform you by order of my Government, that an amicable arrangement
having failed to be reached by His Britannic Majesty's Government giving
adequate satisfaction to their national, they have arrived at the decision,
in conformity with Article 26 of the prescriptions of the Mandate for
Palestine of April 12th, 1922, to submit the case to the judgment of the
Permanent Court of International Justice at The Hague."
[107] We now know that this step was taken on the suggestion of M.
Mavrommatis'solicitors merely to enable the Permanent Court to take
cognisance of the claim against the British Government.
[108] As I have said, there have been many cases in which a dispute between
two States has arisen from the fact that an alleged wrong has been done by
one of them to a citizen of the other. There was nothing of the kind here.
There was no dispute between the two Governments. The Greek Government filed
the Requête merely for the purpose of bringing M. Mavrommatis'claim within
the jurisdiction of the Permanent Court. There was no dispute between the
two Powers before the Requite was filed and it follows that the first
condition required by Article 26 of the Mandate had not been satisfied.
[p41]
II.
[109] But even if it could be supposed that there was a dispute between the
two Governments, the dispute was not one which could not be settled by
negotiation. Efforts had been made by the agents of M. Mavrommatis to settle
his dispute with the British Government; no such efforts were made by the
Greek Government. An effort made by an individual to get settlement of his
claim against a foreign Government is one thing; an effort made by his
Government, having taken up his case, to effect a settlement of its dispute
with the foreign government is another thing altogether.
[110] It is said that it was of no use to try negotiations between the two
Governments. I cannot see any ground for this assertion. It is a matter of
common experience that governments frequently make a settlement of claims,
the justice of which they do not acknowledge, and innumerable claims of the
nature of the present have formed the subject of compromise. It is quite
impossible to say that if the Greek Government had taken up the claim and,
as a government, had pressed for a settlement, the negotiations might not
have resulted in a settlement.
[111] Article 26 does not make it a condition to the jurisdiction of the
Court that there should have been negotiations with a view to settling the
dispute between the two Powers, but it does make it a condition that the
dispute is one which cannot be settled by negotiation. There may be some
exceptional cases in which it can be predicated that from special
circumstances it is obvious that negotiations would be a mere waste of time,
but the present is not such a case. If the Government of Greece had really
taken up the Mavrommatis matter and made it a subject of negotiation with
Great Britain, who can say that a settlement would not have been arrived at?
[112] The right to sue under Article 26 is carefully confined to nations.
The Court must not deal with the Mandate in such a way that in practice any
individual, the subject of a State Member of the League of Nations, who
makes a claim against a Mandatory, based on some alleged infraction of the
terms of the Mandate, can invoke the compulsory jurisdiction of the
Permanent Court, merely by getting his own Government to file a Requête;
anything of this kind might lead to many abuses. A State which has
undertaken a Mandate [p43] under the League of Nations has gratuitously
taken upon itself a very arduous task and full effect must be given to the
provisions of the Mandate for the protection of the Mandatory from
litigation on any lines other than those laid down in the Mandate. The
effect of the judgment of the Court in the present case might be to fritter
these precautions away.
III.
[113] The jurisdiction of the Permanent Court rests upon consent, and
without consent there is no jurisdiction over any State. The consent may be
by special agreement (compromis) in a particular case, or general. In the
present case the British Government objects to the jurisdiction, but it is
claimed that such a general consent is to be found in the Mandate for
Palestine, under Article 26 combined with Article 11.
[114] I shall presently consider the effect of Article 11, but it is
desirable in the first instance to consider the meaning and effect of
Article 26 in itself.
Article 26.
"The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations."
[115] There can be no doubt as to the class of case which primarily, at all
events, this article was intended to meet. There are a number of provisions
of the Mandate under which it is highly probable that questions may arise
between different Members of the League of Nations. Article 5 forbids
placing any Palestine territory under the control of any foreign Power. Some
Member of the League might allege that this provision had been violated to
its prejudice. Article 9 provides that the judicial system of Palestine
shall assure to foreigners as well as to natives a complete guarantee of
their rights. Questions might arise at any time with another Member of the
League as to whether the judicial system is so constituted as to afford this
guarantee to its subjects. Article 18 forbids all [p43] discrimination
against the nationals of any State, Member of the League of Nations, or
against the goods originating in or destined for any such State, and
provides for freedom of transit across the mandated area. Questions may
arise between the Mandatory and another Member of the League as to the
observance of this article. The same observation applies to Article 19,
which provides for adherence on behalf of Palestine to international
conventions on the slave traffic, traffic in arms and ammunition, traffic in
drugs, or relating to commercial equality, freedom of transit and
navigation, aerial navigation and postal, telegraphic and wireless
communication, or literary, artistic or industrial property; and so under
Article 20 providing for co-operation in a common policy adopted by the
League, for preventing and combating diseases of men, plants and animals. In
this connection Article 21 must be mentioned. It provides for the enactment
and execution of a law as to Antiquities. This law is to ensure equality of
treatment of the nationals of all States Members of the League of Nations
and under head (7) it is provided that in granting authorisations to
excavate, the Administration of Palestine shall not act in such a way as to
excludes avants of any nation without good grounds.
[116] Under all these heads there are endless possibilities of dispute
between the Mandatory and other Members of the League of Nations, and it was
highly necessary that a Tribunal should be provided for the settlement of
such disputes. Article 26 provides the Tribunal for this purpose.
[117] The dispute in the present case is as to the alleged failure by the
British Government as Mandatory to recognise the rights of M. Mavrommatis in
respect of certain concessions in Palestine. This can be brought within the
compulsory jurisdiction provided for in Article 26 only if it relates to the
interpretation or the application of the provisions of the Mandate. The
dispute here has obviously nothing to do with any of the provisions of the
Mandate primarily contemplated in Article 26, and to which I have already
referred. It is, however, contended for the claimant that Article 11 of the
Mandate contains provisions which have been infringed by the action of the
Mandatory as regards these concessions and that for this reason the case
falls under Article 26. Article 11 is as follows: [p44]
Article 11.
"The Administration of Palestine shall take all necessary measures to
safeguard the interests of the community in connection with the development
of the country, and, subject to any international obligations accepted by
the Mandatory, shall have full power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established therein. It
shall introduce a land system appropriate to the needs of the country,
having regard, among other things, to the desirability of promoting the
close settlement and intensive cultivation of the land.
"The Administration may arrange with the Jewish Agency mentioned in Article
4 to construct or operate, upon fair and equitable terms, any public works,
services and utilities, and to develop any of the natural resources of the
country, in so far as these matters are not directly undertaken by the
Administration. Any such arrangements shall provide that no profits
distributed by such agency, directly or indirectly, shall exceed a
reasonable rate of interest on the capital, and any further profits shall be
utilised by it for the benefit of the country in a manner approved by the
Administration."
[118] The French version agrees with the English and I refer to it only on
one point on which it is slightly clearer. The English words "or of the
public works, services and utilities established, or to be established
therein" are rendered ou des travaux et services d'utilité publique déjà
établis ou à y établir. The words whether in French or English denote works
or services of public utility such as railways, provision for supply of
water, gas, electricity, etc.
[119] Protocol XII to the Treaty of Lausanne deals with Turkish Concessions
such as those of
M. Mavrommatis in Palestine. By Article 1 such concessions duly entered into
before October 29th, 1914, are maintained, but subject to certain
conditions, hereinafter referred to, contained in Articles 4, 5 and 6 and
relating amongst other things to adaptation of such concessions to the new
economic conditions.
[120] The charge made against the British Government as Mandatory [p45] is
that it refused to give effect to the Mavrommatis Concessions and granted
concessions covering in part the same ground to one Rutenberg. The Greek
Government says that, if established, this would amount to a breach of the
provisions of the Mandate, and that this would give the Court compulsory
jurisdiction under Article 26. Great Britain denies this. This put shortly
is the question which has been raised and discussed very fully on the
Preliminary Objection.
[121] For the Greek Government it is contended that the case falls under
Article 11 of the Mandate in virtue of the words in the first sentence
"subject to any international obligations accepted by the Mandatory". It is
said that these words incorporated into Article 11 the provisions of the
Lausanne Protocol XII, so that for the purposes of Article 26 that Protocol
must be regarded as part of Article 11 of the Mandate, and that the grant of
the Rutenberg Concession was an exercise of the power conferred in the first
sentence of Article 11 to provide for public ownership or control and was in
breach of the Protocol which recognises the Mavrommatis Concessions subject
to certain conditions. It was further alleged that the granting of the
Rutenberg Concession amounted to an arrangement made by the Administration
of Palestine with the Zionist Organisation within the terms of paragraph 2
of Article 11 and that the words reserving international obligations in the
first sentence should be read into paragraph 2.
[122] This in broad outline is the case made against the British Government
on the question of jurisdiction. I proceed to examine it in detail.
[123] The words relied on as showing that there has been a breach of the
provisions of the Mandate within Article 26 are the following: "subject to
any international obligations accepted by the Mandatory". An examination of
the article shows conclusively that these words constitute merely a
limitation which is attached to one only of the powers conferred on the
Mandatory by Article 11, namely the power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established therein.
[p46]
[124] It will be observed that Article 11 begins with a general statement as
to one duty imposed on the Administration of Palestine. This is contained in
the initial words "The Administration of Palestine shall take all necessary
measures to safeguard the interests of the community in connection with the
development of the country". These words are a statement of principle and
provide that in the development of the country the interests of the
community are not to be sacrificed to those of individuals and that all
measures necessary to safeguard the interests of the community are to be
taken by the Administration.
[125] Article 11 then proceeds to deal specifically with the work of the
Administration and its powers under three heads: (1) The public ownership or
control of natural resources or public works, etc. therein: this is closely
connected with the statement of principle which precedes it and is dealt
with in the concluding words of the same sentence. — (2) The introduction of
a Land System (second sentence of the article). — (3) Arrangements with the
Zionist Organisation for the construction or operation of public works, etc.
or development of natural resources (paragraph 2).
[126] I take these heads in their order. (1) The words which deal with the
first head are the following: — "and subject to any international
obligations accepted by the Mandatory", the Administration "shall have full
power to provide for public ownership or control of any of the natural
resources of the country, or of public works, services and utilities
established or to be established therein".
[127] We have been informed that in the draft of the Mandate the reservation
at the beginning of these words ran thus: "subject to the provisions of
Article 311 of the Treaty of Peace with Turkey", i.e. the Treaty of Sevres.
It became, however, obvious that the Treaty of Sevres would never be allowed
to take effect and to avoid delay in the completion of the Mandate for
Palestine the reference to the Treaty of Sevres was replaced by the words
"subject to any international obligations accepted by the Mandatory", words
which would be applicable to the provisions of the Treaty which was expected
to replace that of Sevres.
[128] Article 311 of the Treaty of Sevres dealt with concessions in
countries like Palestine detached from Turkey to be placed under the
authority or tutelage of one of the Principal Allied Powers. It provided in
substance that concessions granted before October [p47] 29th, 1914, should
be maintained subject, however, to power to buy out any concession contrary
to the public interest, compensation being paid in the manner provided;
there was further provision for adaptation of the contract to the new
economic conditions. Article 311 of the Treaty of Sevres is now replaced by
Protocol XII of the Treaty of Lausanne which deals with the same subject. It
is obvious that the "international obligations accepted by the Mandatory"
referred to in Article 11 are primarily, at all events, the provisions of
Protocol XII of the Treaty of Lausanne. It would also include any other
relevant international obligations but it does not appear that there are any
others.
[129] It is quite impossible to apply these words, "international
obligations accepted", to international law either generally or in any
particular respect. The words obviously refer to conventional obligations by
treaty or other agreement; provisions of international law do not require
acceptance to be binding but are binding by the sanction on which all
international law rests, the general consent of nations. The words "accepted
by the Mandatory" show that the "international obligations" referred to are
contractual, that is by treaty or convention, and reference is clearly made
to the provisions which were expected to replace the Treaty of Sevres and in
particular Article 311.
[130] It may be said, why make a particular reservation for these
international obligations? They are binding, it might be said, by force of
the treaty or convention which created them, and which has been accepted by
the Mandatory. The answer is clear. These words are introduced to show
beyond doubt that the grant of the power to "provide for public ownership or
control" is not to be exercised in a manner inconsistent with treaty
obligations which the Mandatory has accepted. If the words of reservation
had been left out it might have been plausibly argued that power was
conferred on the Administration of Palestine to override any such
obligations. Without these words of reservation the clause have run thus:
the Administration "shall have full power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established[p48]
therein". It would have been said, if the Mandate had been thus worded, that
the Administration might exercise this power to acquire as public property
or to assume public control, unfettered by international obligations even if
they had been accepted by the Mandatory. Nothing of the kind was intended,
and, to make this clear beyond doubt, these words were inserted to show that
the power conferred was subject to such obligations as had been accepted by
the Mandatory. These words impose a restriction upon the power of
acquisition or control conferred on the Administration by the first sentence
of Article 11; it is to be subject to treaty obligations which have been
accepted by the Mandatory.
[131] These words of reservation apply only to the first head of the powers
conferred by Article 11, namely, the power of acquisition of public property
or control; they have no application to heads 2 and 3 which relate
respectively to the introduction of a Land System and to arrangements to be
made with the Zionist Organisation. With reference to both these last heads
such words would be surplusage. No one could suppose for a moment that the
power to introduce a Land System or to make arrangements with the Zionist
Organisation could confer any authority to disregard the terms of any
international obligations; any existing treaty might be enforced by the
sanctions appropriate to treaties. But, as I have pointed out, if "full
power to provide for public ownership or control" had been conferred
simpliciter upon the Administration of Palestine, it might have been
supposed that this was meant to empower the Administration to "nationalise"
irrespective of treaty obligations. It was very proper under head (1) to
make the reservation; under heads (2) and (3) it was wholly superfluous.
[132] If the Administration of Palestine had provided for public ownership
or control of any of the natural resources of the country or of public
works, etc., in a manner which involved the disregard of international
obligations accepted by the Mandatory, there would have been an infraction
of Article 11 which might have been submitted to the Permanent Court at the
instance of any Member of [p49] the League of Nations under Article 26. The
property would have been acquired or the control assumed contrary to Article
11, because Article 11 confers the power to acquire such property or control
only in accordance with international obligations accepted. Here nothing of
the kind took place. The Administration of Palestine has not made as to the
subjects of the Mavrommatis concessions any provision for public ownership
or control within the meaning of the first sentence of Article 11. The
granting of concessions is not an exercise of the first power in Article 11
nor is their annulment, unless it forms part of a process of nationalisation
by making the subject public property or putting it under public control. It
has been contended that Article 28 of the Rutenberg /Annex to Mémoire of
Greek Gov., p. 35, p 48/ concessions for the supply of electricity within
the Palestine area showed an assumption of public control within the meaning
of the first sentence of Article 11 of the Mandate. This suggestion does not
bear examination. The article provides that the undertaking of the Company
shall be recognised as a Public Utility Body under Government control and
all the installations and property of the undertaking shall receive
protection as such. This provision does not vest the management in the
Government to any extent; it merely recognizes the right of the Government
to assume control if the public interest demands it. The management remains
in the Company until the power is exercised. The existence of the power does
not constitute an assumption of public control within the meaning of Article
11.
[133] In the judgment of the Court is this connection great stress is laid
upon a passage on page 5 of the Preliminary Counter-Case which runs as
follows:
"The concessions granted to M. Rutenberg in September 1921, for the
development of electrical energy and water-power in Palestine (Annex to the
Greek Case, pp. 21 — 52) were obliged to conform to this Article 11, and it
would have been open to any Member of the League to question provisions in
those concessions which infringed the international obligations which His
Britannic Majesty as Mandatory for Palestine had accepted."
[134] It is perfectly true that any party to an international obligation
accepted by the Mandatory and therefore binding on Palestine [p50] might
have complained if that international obligation had been infringed by any
concession. The right so to complain would not have been confined to Members
of the League, — any party to a treaty may take steps to prevent its
violation or to obtain redress. I have called attention to the provisions of
Article n in detail and have shown that the reservation in the first
sentence only applies to cases in which provision is made for public
ownership or control and that no such provision is made in the Rutenberg
concessions. It follows that the right to object to any infringement of
international obligations in such concessions would rest not on the
reservation in the first sentence of Article n, but on the rights which
every Party to a treaty has by international law.
[135] It must be remembered that this passage in the argument cannot have
been written with reference to the distinction between mere international
engagements and international engagements which have been incorporated with
and form part of the Mandate. It was only at a later stage of the case that
the controversy on this point arose. It appears to me that language employed
under such circumstances cannot be treated as an admission on a point that
was not then under consideration. Article 11 must be construed according to
its true meaning. The so-called "declaration" is merely part of an argument
and would, I doubt not, have been differently expressed if the point now at
issue had been then developed.
[136] The second head of Article 11 provides for the introduction by the
Administration of Palestine of a Land System. There is nothing said under
this head as to existing international obligations for the reason I have
indicated. It must not, however, for a moment be supposed that the
Administration could proceed with a Land System at variance with
international obligations without laying itself open to all the proceedings
by which international obligations are enforced. Any such action might lead
to diplomatic representation and give ground for any steps which the
aggrieved Power might think proper to take. But it could not be brought
compulsorily before the Permanent Court under Article 26, because there
would be no violation of the provisions of the Mandate.
[137] And so of the third head of powers under Article 11, as to
arrangements [p51] with the Zionist Organisation. If any such arrangements
amounted to an infringement of an international obligation, any Power
interested might proceed by remonstrance and by all the steps which are
taken to bring pressure to bear upon an offending State. The difference
might by consent, general or special, be disposed of by the Permanent Court;
it could not be brought compulsorily before the Court under Article 26.
[138] I have already referred to the conditions with regard to the
readaptation of concessions which are contained in Protocol XII to the
Treaty of Lausanne. Article 6 of that Protocol provides that beneficiaries
under concessionary contracts "which have not on the date to this Protocol"
(July 24th, 1923) "begun to be put into operation (or as it stands in the
French version, qui n'auraient pas reçu à la date de ce jour un commencement
a’application) cannot avail themselves of the provisions of this Protocol
relating to readaptation. It was on this point that the negotiations between
M. Mavrommatis and the British Government broke down. The contention of M.
Mavrommatis was that these words were satisfied by the deposit of plans and
of security, while the British Government maintained that they require that
the execution of the works should have been begun. In the judgment of the
Court (p. 29) it stated that this question was one as to the interpretation
of Article II of the Mandate and that Article 26 applied to it. The question
depends entirely on the construction of the Protocol and the view that it
falls to be decided under Article 26 must depend on the application of the
doctrine of incorporation of the Protocol into Article 11 of the Mandate. It
seems to me that the proposal to make any such application supplies a
forcible illustration of the fallacy underlying the whole doctrine of
incorporation as applied to this case. The Protocole is no part of the
Mandate for any purpose; it is referred to in the first sentence of Article
11 merely by way of limiting the power of acquiring public property or
control there conferred. With this these conditions have nothing to do. I
cannot accept the view that Article 11 of the Mandate is to be read as if it
contained in extenso the provisions of the Protocol. The difference on this
point was one which, if it had existed between the two Governments, might
have been submitted to the Permanent Court by consent; it could not have
been compulsorily referred under Article 26. [p52]
[139] M. Politis in his argument for the Greek Government suggested that
Great Britain could be made liable on the ground that in making the
concessions to M. Rutenberg they were entering into an arrangement with the
Jewish Agency under paragraph 2 of Article 11 and that the arrangement was
in violation of the international obligations referred to in the first
sentence of that article.
[140] This suggestion is not borne out by the terms of the Mandate.
Paragraph 2 of Article 11 relates to arrangements to be made by the
Administration with the Jewish Agency mentioned in Article 4 of the Mandate.
By that article a Jewish Agency is to be recognised as a public body for the
purpose of advising and cooperating with the Administration as to matters
affecting the Jewish population in Palestine "and subject always to the
control of the Administration to assist and take part in the development of
the country." The Zionist Organisation, so long as the Mandatory thinks its
organisation and constitution appropriate, is to be recognised as such
agency. The arrangement mentioned in paragraph 2 is to be with this public
body. The arrangement is to be for the construction or operation of public
works, etc. or for the development of the natural resources of the country
"in so far as these matters are not directly undertaken by the
Administration". The fact that the memorandum and articles of the Rutenberg
Concession for electricity, etc. were to be approved by the High
Commissioner in agreement with the Jewish Agency (see Clause 2 of the
Agreement of September 21st, 1921) cannot be regarded as such an
arrangement. /Annex, p. 36/. Any arrangement under paragraph 2 of Article 11
was to be for construction or operation of public works, etc. or for
development of the country's resources, and was to be for an undertaking in
which profits might be made by the Jewish Agency, as is shown by the last
sentence of Article 11. There is nothing to show that any such arrangement
was ever entered into. In the first place, the concession to M. Rutenberg
was not an arrangement with the Zionist Agency. And, in the second place, it
is quite impossible, for the reasons I have already given, to read into the
second paragraph the reservation in the first sentence of Article 11. The
judgment quotes a passage from the speech of the British Agent as containing
an admission that the reservation in the first sentence is to be read into
paragraph 2. What is said in this passage is that the reservation is so
natural that it ought to be implied in the second paragraph [p53]. The
stipulations of any treaties would of course apply to anything done under
paragraph 2. But they would apply simply as treaties, not in virtue of the
reservation which applies and can apply only to the power conferred in the
first sentence — they could not be made the subject of proceedings under
Article 26 — but could be enforced like all treaties by representations with
the possible exercise of force in the background. The difference between
these two things was immaterial for the purpose of the point with which the
British Agent was then dealing — it is vital for the purposes of the present
controversy. I venture to refer to what I have already said with reference
to a quotation from the British Preliminary Counter-case in a similar
connection.
[141] The statement in the judgment, that the Parties appear to have agreed
in admitting that the reservation in the first sentence of Article 11
applies to the second paragraph appears to me to be a mistaken inference
from the passages quoted from the British Counter-case and the British
Agent's speech upon which I have commented already.
[142] The whole question of Article 11 may be summed up in a very few words.
[143] Article 11 does not prescribe that the terms of the international
obligations referred to shall be observed; what it does prescribe is that
public property or control shall not be established in violation of the
terms of such obligations. The difference between these two things is vital
and as soon as it is appreciated all difficulty as to Article 11 disappears.
The mere violation of an international obligation does not constitute a
breach of Article 11; it is only if the first power conferred by Article 11
is exercised in violation of the international obligation that there is an
infraction of the terms of the Mandate.
[144] For these reasons, in my opinion, the Court has no jurisdiction to
deal with this case.
(Signed) Finlay. [p54]
Dissenting Opinion by Mr. Moore.
[145] I regret that I am obliged to dissent from the judgment of the Court
in the present case.
[146] By the present application (Requéte), filed on May 13th, 1924, the
Greek Government, appearing as a plaintiff, has asked the Court in the
exercise of compulsory jurisdiction to require the British Government to
appear and, as defendant, answer on the merits a claim for damages preferred
on behalf of M. Mavrommatis, a Greek subject, in respect of certain
concessions which he obtained and of other which he had wished to obtain
from the Turkish authorities in Palestine. All these concessions, actual and
proposed, relate to public works, services, or "utilities". Two of
them,respectively relating to the construction and operation of electric
tramways and the supply of electric light and power at Jerusalem, and to the
supply of drinking water to the same city, were definitively concluded with
the local Turkish authorities on January 27th, 1914. It is alleged that M.
Mavrommatis had begun to carry out these concessions by depositing in bank a
sum of money and by submitting detailed plans for the approval of the
authorities, when, on the Outbreak of war he availed himself, with the
consent of the authorities, of a provision in the concessions for the
postponement of construction in case of force majeure. A second group
relates to the construction and operation of electric tramways and the
supply of electric light and power and of drinking water in the city of
Jaffa, and the irrigation of its gardens from the waters of El-Hodja. It is
alleged that M. Mavrommatis, under agreements signed on January 27th, 1914,
deposited a provisional security and made preliminary surveys; that on
January 28th, 1916, concessions were signed by the local authorities, but
that, under a new Turkish law, such concessions had to be confirmed by
Imperial firman; that the documents were sent to Constantinople, and were
returned to Jerusalem with a request for the change of a single and
immaterial descriptive word, and that the issue of the firman involved a
mere formality, when, in consequence of the outbreak of war between Greece
and Turkey, M. Mavrommatis was obliged to leave the Ottoman dominions and
the Imperial firman was not promulgated. The third concessionary group
related to the irrigation of the valley of the Jordan. Here, again, it is
alleged that, [p55] under a verbal agreement in 1911 with the competent
authorities, surveys and reports were made, that plans and the draft of a
contract were submitted, and that a provisional security was deposited; but
it is further stated that, by the Turkish law, the contract required the
consent of the Imperial Government after approval by the Parliament, and
that this approval was not obtained because the outbreak of the war
prevented the Parliament from assembling. In conclusion, the application
asks the Court to give judgment that the Government of Palestine and
consequently also the British Government has since 1921 "wrongfully refused
to recognise to their full extent the rights acquired by M. Mavrommatis
under the contracts and agreements concluded by him with the Ottoman
authorities in regard to the works specified above", and that the British
Government should make reparation for the consequent loss, estimated at
£234, 339, together with interest at six per cent from July 20th, 1923, the
date on which the estimate was made.
[147] In the Case (Mémoire) subsequently filed on behalf of the Greek
Government, the claim for damages in respect of the Jordan valley
transactions is abandoned, as a proof, so the Case states, that where the
claimant feels some doubt as to the international value of his rights, he is
not disposed to press them. But the Court is then asked to give judgment
against the British Government for the sum of £121,045 in respect of the
Jerusalem concessions, and of £113,294 in respect of the Jaffa group,
together with interest in each case at the rate of six per cent from July
20th, 1923, up to the date on which the judgment is given. The total of
these two sums is the same as the total amount claimed before the Jordan
group was withdrawn.
[148] By Article 36, paragraph 1, of the Statute, "the jurisdiction of the
Court comprises all cases which the Parties refer to it and all matters
specially provided for in treaties and conventions in force"; and, where the
compulsory jurisdiction of the Court is invoked, Article 40 requires a
"written application" (Requête) to be addressed to the Registrar, indicating
"the subject of the dispute and the contesting Parties". Article 35,
paragraph 2, of the Rules of Court [p56] provides that the application «
shall include, in addition to an indication of the subject of the dispute
and the names of the parties concerned, a succinct statement of facts", and
"an indication of the claim". The application accordingly specifies as the
grounds on which the compulsory jurisdiction of the Court is invoked, (1)
Article 9 of Protocol No. XII annexed to the Treaty of Peace of Lausanne of
July 24th, 1923", and (2) "Articles 11 and 26 of the conditions of the
Mandate for Palestine conferred upon His Britannic Majesty on July 24th,
1922". The application then quotes, from Article 9 of the Lausanne Protocol,
the provision that, "in territories detached from Turkey under the Treaty",
"the State which acquires the territory is fully subrogated as regards the
rights and obligations of Turkey towards the nationals of the other
Contracting Powers .... who are beneficiaries under concessionary contracts
entered into before October 29th, 1914, with the Ottoman Government or any
local Ottoman authority", and that "this subrogation will have effect.... as
from October 30th, 1918". The application further quotes from the first
paragraph of Article 11 of the Palestine Mandate, the following clause:
"The Administration of Palestine shall take all necessary measures to
safeguard the interests of the community in connection with the development
of the country, and, subject to any international obligations accepted by
the Mandatory, shall have full power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established therein."
[149] On June 16th, 1924, on the assembling of the Court in ordinary
session, the British Government appeared and put in a plea to the
jurisdiction, requesting the Court to dismiss the application on the ground
among others that the British Government had not consented to the reference
of the matter to the Court, that Article 26 of the Palestine Mandate was
inapplicable to the case, that the only international instrument by which
the British Government's obligations in regard to the recognition of
concessions in Palestine were or would be defined was the Concessions
Protocol of Lausanne, that this instrument, which formed part of the peace
settlement with Turkey, would not become operative until the Lausanne Treaty
was duly ratified, and that the Protocol did not provide for the submission
to the Court of disputes which might arise as to the interpretation and
application of its provisions. [p57]
[150] The jurisdictional objection based on the fact that the Concessions
Protocol, the provisions of which the application invoked, had not become,
operative, was obviously well-founded. Not only is the Protocol annexed to
the Treaty as part of the peace settlement, but, by the very terms of the
Protocol, its coming into force depended upon the ratification of the
Treaty. In fixing the periods within which concessions are to be dealt with,
within which they may be re-adapted or dissolved, within which options
concerning them may be exercised, and within which experts may be employed
and arbitral proceedings taken, "the coming into force of the Treaty of
Peace" is, all through the Protocol, fixed as the starting point. The treaty
was at length ratified (August 6th, 1924); but, in the interval of nearly
two months that elapsed after the Court met, the application evidently was,
as it stood, subject to dismissal on the ground that the enforcement of
unratified treaties, whether by the award of damages for their alleged
infraction or otherwise, is beyond the Court's jurisdiction. On this point
Article 36 of the Statute, in limiting the compulsory jurisdiction of the
Court to matters specially provided for "in treaties and conventions in
force", is definite and conclusive. The doctrine that governments are bound
to ratify whatever their plenipotentiaries, acting within the limits of
their instructions, may sign, and that treaties may therefore be regarded as
legally operative and enforceable before they have been ratified, is
obsolete, and lingers only as an echo from the past.
[151] With respect to the plea to the jurisdiction filed by the defendent
Government, it has been suggested in argument before the Court that such
pleas are especially common in Anglo-Saxon countries, where it is the usual
practice to neglect no means of defence to an action, and that Anglo-Saxon
jurists have long been in the habit of carrying this practice into the
domain of international justice. But, even if a majority of the five judges
who dissent from the assumption of jurisdiction in the present case were not
from countries which do not derive either their substantive or their
procedural law from Anglo-Saxon jurisprudence, I should be unable to admit
that the suggestion is pertinent to the jurisdictional question raised by
the plea to the pending application.
[152] There are certain elementary conceptions common to all systems of
jurisprudence, and one of these is the principle that a court of [p58]
justice is never justified in hearing and adjudging the merits of a cause of
which it has not jurisdiction. Nowhere is this more clearly laid down than
in the great French repository of jurisprudence by Dalloz, where it is
stated that, as jurisdiction is essentially a question of public order, it
being a matter of general interest that no authority shall transgress the
limits to which its action is confined, an exception to the competence of a
tribunal may be taken at any stage of the proceedings, so that, even though
the Parties be silent, the tribunal, if it finds that competence is lacking,
is bound of its own motion to dismiss the case (se dessaisir d'office); and
a judgment of the highest Court in France is cited to the effect that that
court may itself supply the exception, although the Parties had not raised
the point before the courts of first instance and of appeal. (Dalloz,
Répertoire, Compétence Art. 2, n° 36.)
[153] Article 38, paragraph 4, of the Statute provides that the Court "shall
apply", not as having binding force, but as "subsidiary means for the
determination of rules of law", "judicial decisions and the teachings of the
most highly qualified publicists of the various nations". Having, in the
performance of my duty under the Statute, referred to the principles applied
by at least some of the Courts of the Continent, I beg leave to say that the
decisions of the Courts of United States as to the fundamental character of
the question of jurisdiction are practically identical in terms with those
of the highest Court in France, and, no doubt, of the highest Courts in at
least some other countries. In a leading case the Supreme Court of the
United States has declared:
"It is true that the plaintiffs below, against whose objection the error was
committed, do not complain of being prejudiced by it; but the rule,
springing from the nature and limits of the judicial power of the United
States, is inflexible and without exception, which requires this Court, of
its own motion, to deny its own jurisdiction and, in the exercise of its
appellate power, that of all other Courts of the United States, in all cases
where such jurisdiction does not affirmatively appear in the record on
which, in the exercise of that power, it is called to act.... This question
the Court is bound to ask and answer for itself, even when not otherwise
suggested and without respect to the relation of the Parties to it."
(Mansfield v. Swan, 1884, III, U.S. 379)
[p59]
[154] In the United States not only is jurisdiction divided between the
State governments and the national government, but the jurisdiction of the
federal courts is for the most part statutory and limited. By reason of
these fundamental facts, pleas to the jurisdiction are necessarily frequent;
and motions to dismiss a suit for want of jurisdiction are made and
entertained not only in respect of the complaint, but whenever in the course
of the proceeding it may appear that the essentials of jurisdiction do not
exist. Whether the plaintiff would be precluded from bringing another suit
would depend upon his ability later to meet the objection to his original
complaint. If he could not do this, he would, legally and justly, be
precluded from presenting his claim again ; but the dismissal does not in
itself necessarily have such an effect. It merely means that the Court will
not commit the flagrant illegality of entertaining a suit which, on the
plaintiff's own statement, the Court has at the time no legal power to hear
and determine.
[155] The requirement of jurisdiction, which is universally recognised in
the national sphere, is not less fundamental and peremptory in the
international. It will suffice to quote on this elementary point only two
publicists.
[156] M. André Weiss, in his work entitled Droit international privé,
published at Paris in 1913, says:
"The principle of res judicata can apply to foreign judgments only so far as
they are regular in form and so far as they proceed from judges competent
according to the lex fori. It is the duty of the tribunal before which they
are invoked to examine them from these different points of view, and to
decline to give effect to them it the result of the examination is
unfavourable." (VI. 10.) [FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] (L'autorité de la chose jugée ne peut appartenir aux sentences
étrangéres qu'autant qu'elles sont régulieres en la forme et qu'autant
qu'elles émanent de juges compétents d'aprés'la lex fori. Le tribunal devant
lequel on les invoque a le devoir de les examiner a ces divers points de
vue, et de les arrêter au passage, si le résultat de l'examen est
défavorable.)
---------------------------------------------------------------------------------------------------------------------
[157] M. N. Politis in his volume entitled La Justice internationale,
published at Paris during the present year, says: [p60]
"One conceives of the possibility of a refusal to execute a sentence, only
if it is tainted with nullity. It has this character in the case of a
defective agreement, and in that of an excess of power on the part of the
arbitrator" (p. 91).[FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] (On ne concoit la possibilité d'un refus d'exécution que si la
sentence est entachée de nullite. Elle a ce caractére dans l'hypothése d'un
ccLnpromis irré-gulier et dans celle d'un excés de pouvoir de la part de
l'arbitre.)
---------------------------------------------------------------------------------------------------------------------
[158] Ever mindful of the fact that their judgments, if rendered in excess
of power, may be treated as null, international tribunals have universally
regarded the question of jurisdiction as fundamental. It would be
superfluous to cite from the records of international tribunals particular
decisions to this effect. An international tribunal with general
jurisdiction, compulsory or non-compulsory, over independent States does not
as yet exist. The international judicial tribunals so far created have been
tribunals of limited powers. Therefore no presumption in favor of their
jurisdiction may be indulged. Their jurisdiction must always affirmatively
appear on the face of the record.
[159] This principle is peculiarly applicable to the Permanent Court of
International Justice. By Article 36 of the Statute, the limited compulsory
jurisdiction, which it was originally proposed to apply to all adhering
States, now extends only to States which expressly declare that they accept
it; and for this purpose there is attached to the Statute a special
protocol, the nature of which is indicated by the title "optional clause"
(disposition facultative). This "optional clause" has not been signed either
by Great Britain or by Greece, so that, for the exercise of compulsory
jurisdiction in the present case, grounds must be found elsewhere.
[160] The Greek Government having assigned as grounds for the present
compulsory claim Articles 26 and 11 of the Palestine Mandate, I will now
consider the terms and effect of these articles.
[161] Article 26 reads as follows:
"The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations." [p61]
[162] This clause is found in identical form in all the mandates with one
exception. In the Mandate which Great Britain holds for East Africa there is
an additional clause, reading as follows: "States Members of the League of
Nations may likewise bring any claims on behalf of their nationals for
infractions of their rights under this Mandate before the said Court for
decision." But, while I mention the existence of this clause, I draw no
inference from the fact that a similar clause is not found in the rest of
the mandates. My dissent from the judgment on the present case rests upon
other grounds.
[163] To the jurisdiction of the Court under Article 26 the concurrence of
three conditions is indispensable. These conditions are: First, there must
be a "dispute" between the Mandatory and another Member of the League of
Nations; secondly, the dispute must relate to "the interpretation or the
application of the provisions of the Mandate"; thirdly, it must appear that
the dispute "cannot be settled by negotiation". Taking as a whole all that
is set forth in the present application (Requéte) and the supporting
documents, I am of opinion that none of these conditions is fulfilled. I
will discuss the first and third together.
[164] The first condition -the existence of a dispute between the Mandatory
and another Member of the League -is not met merely by the filing of a suit
by the one government against the other in this . Court. There must be a
pre-existent difference, certainly in the sense and to the extent that the
government which professes to have been aggrieved should have stated its
claims and the grounds on which they rest, and that the other government
should have had an opportunity to reply, and if it rejects the demands, to
give its reasons for so doing. Moreover, if it rejects some of the demands,
but admits others, it is entitled to know why the compromise thus offered is
not acceptable. These propositions, tested by the ordinary conceptions of
fair dealing as between man and man, should seem to be self-evident; nor
would it be difficult to cite cases in which governments have abandoned
their claims on considering the arguments adduced on the other side. [p62]
[165] But it must also appear -and this is the third condition -that the
dispute, if any is shown to exist, "cannot be settled by negotiation". This
condition did not originate with the mandates. On the contrary, long before
mandates were heard of, a similar clause was inserted in scores of general
arbitration treaties, as a vital condition of their acceptance and
operation. These treaties for the most part still exist. The condition in
question does not mean that the difference must be of such a nature that it
is not susceptible of settlement by negotiation; nor does it mean that
resort to the Court is precluded so long as the alleged wrong-doer may
profess a willingness to negotiate. The clause must receive a reasonable
interpretation; but an interpretation cannot be reasonable which in effect
nullifies the condition.
[166] An international "dispute which cannot be settled by negotiation",
cannot, upon the pending application (requéte) and supporting proof, be said
now to exist, either in law or in fact.
[167] When Article 26 of the Mandate provides for the submission to the
Permanent Court of International Justice of disputes which "cannot be
settled by negotiation", it necessarily means disputes between governments.
The article, by its very terms, includes only disputes which may arise
"between the Mandatory and another Member of the League of Nations". This
obviously does not include a dispute between the Mandatory and M.
Mavrommatis. Had M. Mavrommatis been a Member of the League of Nations, it
would have been unneccesary for his government to appear here ; but, under
Article 26, it is only of disputes between governments that the Court has
jurisdiction, and, when the article speaks of the settlement of such
disputes by negotiation, it also necessarily means negotiation between
governments.
[168] Moreover, in deciding whether such negotiation has taken place, the
Court is not at liberty to interpret the word "negotiation" as a process by
which governments are enabled to evade their obligations. Although this
superficial view may to some extent popularly prevail, yet, in the
international sphere and in the sense of international law, negotiation is
the legal and orderly administrative process by which governments, in the
exercise of their [p63] unquestionable powers, conduct their relations one
with another and discuss, adjust and settle, their differences. Many
celebrated judicial decisions might be cited to show the respect paid to
this principle by national courts, and it is equally binding on
international courts, which exercise their powers only with the consent of
nations.
[169] The theory that the Greek Government, at any moment when it might see
fit to intervene, might be considered as having been a party to the
discussions which M. Mavrommatis and his attorneys carried on directly with
the British Colonial Office from 1921 to 1923, cannot be accepted. It is a
common thing for aliens to negotiate with a government both concerning
contracts or concessions which they desire to obtain and concerning
contracts or concessions which the government is alleged to have failed to
keep. Often the negotiations are thus directly carried on because it is
perfectly understood that the subject matter is not a proper one for
diplomatic intervention; and it can never be argued that the government,
because it negotiated with the claimant, admitted the right of his
government to espouse his cause. On the other hand, in the treatment of the
points at issue, and in the making of proposals and counter-proposals, the
alien claimant is not hampered by the international obligations which might
limit or even preclude the interposition of his government, if he should ask
it to make his claim the subject of an international demand.
[170] It is an elementary principle that, when a government officially
intervenes on behalf of its citizen, it makes his claim its own, and may
settle the claim on such terms as it may conceive to be proper. From this it
necessarily results that the government, in taking up the claim, is subject
to all the limitations resulting from any obligations which it may have
contracted towards the government against which the claim is made; and it
cannot pretend to be freed from those limitations by reason of the fact that
they were not observed in the negotiations which its citizen previously
carried on with the other government. On the other hand, the private
citizen, in placing his claim in his government's hands, must be held to
have accepted the necessary legal consequences of his action. [p64]
[171] These observations are peculiarly applicable to what are called the
negotiations in the present case, which embraced all the matters to which
reference has been made, including the claims which the applicant's memoir
�has withdrawn. The exchange of views covered not only existing concessions
but also proposals for new ones. In this there is no ground whatever for
criticism. In treating directly either with the Colonial Office or with the
local authorities in Palestine, M. Mavrommatis was justified in considering
his own interests and in making such proposals as he might conceive to be
for his advantage. But the situation of his government, especially during
and after the negotiations which, in common with the British Government, it
carried on with Turkey at Lausanne, was altogether different. For example,
the Treaty of Lausanne, like the previous Treaty of Sévres, protects only
concessions granted before October 29th, 1914. The judgment of the Court
discusses somewhat extensively, but with much reserve, the possible effects
of this stipulation. But, in reality, the only question with which the Court
is now concerned is whether the stipulation does not imply that the
contracting Parties are not to make diplomatic claims, or bring suits for
damages, against one another in respect of concessions granted after that
date or not granted at all; and I feel compelled to say that, in my opinion,
the stipulation necessarily has that effect.
[172] Prior to the note of the Greek Legation in London to the Foreign
Office of May 12th, 1924, announcing the intention of the Greek Government
to bring a suit in the Permanent Court of International Justice, I find
nothing whatever to indicate the existence of an international dispute. The
Court is referred to the letter addressed by the Greek Legation to the
Foreign Office in London on January 26th, 1924 but in that letter there is
nothing that goes beyond the domain of "good offices". It is an elementary
and familiar principle that the use of good offices does not imply the
existence of a right to intervene or, in other words, to make an official
demand or raise an international dispute ; and, taking the character, the
scope and the contents of the correspondance, the absence of such an
implication in the present case is apparent. In so saying, I do not overlook
the suggestion that some of the letters bear file numbers; but the indexing
[p65] of papers does not denote the nature of their contents, much less the
existence of a dispute. Even the peaceful correspondence of the Court is
indexed.
[173] Particular reference is also made to a letter, dated January 27th,
1923, addressed by M. Melas, secretary of the Greek Legation in London, to
Mr. Robartes, a subordinate official of the Foreign Office. In this letter,
which is personal in form, M. Melas stated that M. Mavrommatis, after
fruitless negotiations with the Colonial Office, for a fair and equitable
arrangement as to his rights in Palestine, was compelled to appeal to the
Legation "for advice and support". It is not intimated that the Greek
Government had taken up the case or that the Legation had been mstructed to
intervene in the matter. The entire subject of concessions was in fact then
under negotiation with Turkey at Lausanne. Moreover, when, on February 2nd,
1923, Mr. Robartes answered, in the same informal way, M, Mélas's letter of
January 27th, he intimated that the attempt to treat the question "through
diplomatic channels" would only introduce complications and delays, and that
the matter could be more expeditiously dealt with by M. Mavrommatis's
solicitor and the Colonial Office "than by complicating the negotiations
with the introduction of further intermediaries in the shape of yourself (M.
Mélas) and this department" (the Foreign Office). This suggestion evidently
was accepted.
[174] We next come to the note of the Greek Legation to the Foreign Office
of January 26th, 1924, a year later. This note, after referring to the
letter from Mr. Robartes of February 2nd, 1923, states that, from a letter
addressed to the Legation "by M. Mavrommatis's solicitors", it appeared that
after long negotiations "between him and the Colonial Office", no
satisfactory solution had been reached. In these circumstances the writer of
the note said that he should be grateful if the Foreign Office could see its
way to "letting me know the views of His Majesty's Government on the matter,
and whether, in their opinion, M. Mavrommatis's claim could not be
satisfactorily met". The note then adds that M. Mavrommatis's solicitors had
"suggested" that he would "be prepared to submit -should such a course be
agreeable to His Majesty's Government -the examination of the matter to a
Court of arbitration; this Court to be composed either of a judge of the
[p66] High Court of Justice or by two members nominated one by either of the
interested Parties, under an umpire who would be appointed either by a
common accord of the two Parties, or by His Majesty's Government alone".
Here, again, there is clearly nothing that goes beyond the domain of good
offices. No intimation is made that the Greek Government was then to be
considered as a Party to the case, much less as a Party to an existing
international dispute. It was M. Mavrommatis and the British Government who
were represented as being the interested Parties; it Was by them that the
two arbitrators were to be appointed, and it was by agreement between them,
or even by the British Government alone, that the umpire was to be
appointed.
[175] To this note the Foreign Office replied on April 1st, 1924, saying
that the concessions in question appeared to fall "into three categories
governed by different conditions", which might be conveniently referred to
as "(a) the Jerusalem, (b) the Jaffa, and (c) the Jordan groups". The reply
then states that the Jerusalem concessions, since they alone arose out of an
agreement entered into with the Ottoman Government before October 29th,
1914, were the only ones which His Majesty's Government were prepared to
recognise, "subject to the production of the original signed copies of the
documents and to their being found in order"; but that, as these concessions
"were never put into operation", they could not be readapted under Article 4
of the Lausanne Protocol, but fell under Article 6 of that instrument, "to
which Greece is a party"; that His Majesty's Government were "unable to
agree to their being treated otherwise than in the manner laid down in this
article"; and that they did not constitute a question suitable for
arbitration except in so far as Article 6 provided for the assessment by
experts of an indemnity in respect of a concession dissolved by the
concessionary's request. The reply observed, however, that it was not then
clear whether M. Mavrommatis desired the Jerusalem concessions "to be
dissolved under Article 6 or maintained without readaptation, under the
terms of Article 1". The reply then concludes with the statement that, as
the Jaffa concessions were signed subsequently to October, 1914, and as, in
the case of the Jordan concessions, no concessionary contract was actually
completed or signed, the terms of the Lausanne Protocol made it clear that
[p67] M. Mavrommatis had no rights under them, and that they were not
capable of submission to arbitration.
[176] The only answer of the Greek Legation is to be found in its note of
May 12th, 1924, announcing that the Greek Government had decided to submit
the case to the Permanent Court of International Justice. It will be
observed that, in this note, the Legation for the first time speaks of
acting by order of the Greek Government; but no response whatever is made to
the statements and inquiries contained in the communication of the Foreign
Office of April 9th, 1924. On the contrary, instead of making a statement,
no matter how meagre it may have been, of what the Greek Government
conceived to be the respective grounds of M. Mavrommatis's various claims,
and particularly of its own right, in view of the terms of the Lausanne
Treaty, then to take them up diplomatically and prosecute them, the note
merely declares that the Greek Government had "deemed" that the "best means
of ascertaining the basis" of his claims was "to have recourse to the high
international jurisdiction which has already given us so many proofs of
wisdom and impartiality" -meaning the Permanent Court of International
Justice. Thus, by the very terms of the note, the jurisdiction of the Court
was to be invoked, not in order to obtain the adjudication of a dispute
between the two governments which they had been unable to settle by
negotiation, but to ascertain without negotiation whether there was any
basis for a dispute.
[177] Such being the state of the case upon the petition and proofs
presented by the applicant, the claim of. jurisdiction appears to proceed
upon an interpretation of Article 26 of the Mandate as if it read
substantially as follows:
"The Mandatory agrees that, if another Member of the League of Nations
should think that there may be grounds on which it might be found to be
justified in presenting, on behalf of one of its citizens, a claim against
the Mandatory, such Member may forthwith submit the claim to the Permanent
Court of International Justice, which shall then proceed to adjudicate the
claim and to avoid such damages, if any, as it may find to be due."
[178] The first and third jurisdictional conditions under Article 26 having
thus been held to have been satisfied, it yet remains to meet the third
condition, namely, that the dispute must relate to "the [p68] interpretation
or the application of the provisions of the Mandate"; and for this purpose
there is invoked the provision, in the first paragraph of Article 11 of the
Mandate, that the Administration shall take all necessary measures to
safeguard the interests of the community in connection with the development
of the country, "and, subject to any international obligations accepted by
the Mandatory, shall have full power to provide for public ownership or
control of any ... of the public works, services and utilities established
or to be established therein". But, in applying this clause to the present
case, the Court gives not only to the clause itself but to the word
"jurisdiction" an interpretation from which, with much regret, I am
compelled to dissent.
[179] I will not enlarge upon the question whether the phrase "subject to
any international obligations accepted by the Mandatory" may include all the
obligations to which the British Government may be subject either under
international law or under international agreements; but I am clearly of the
opinion that the clause has no such sweeping effect. Who are the Mandatory
Powers ? As described in Article 22 of the Covenant they are "advanced
nations", which, by reason of that character, are peculiarly fitted to
undertake the "tutelage" of peoples "not yet able to stand by themselves".
They are indeed the constituents of the community of nations in which the
recognition by its members of the obligations of international law is
necessarily and tacitly assumed. It is therefore not to be supposed that the
Mandate was intended to announce in 1923 that the Mandatories had "accepted"
the obligations of international law. In my opinion the word "accepted"
applies only to obligations specially assumed and, in determining what
international obligations are included, we must, in conformity with an
elementary rule of interpretation, examine the context.
[180] By Article 11 the power the exercise of which is to be "subject to any
international obligations accepted by the Mandatory" is the "full power to
provide for public ownership or control" of public works, services and
utilities. The plaintiff government nowhere alleges an attempt on the part
of the Mandatory to exercise that power, unless such an allegation is to be
inferred from references to a concession granted to a Mr. Rutenberg, which
is said to infringe some of the rights claimed by M. Mavrommatis. But the
judgment [p69] of the Court, as I understand it, directly holds that the
granting of the concession to M. Rutenberg was an exercise of the power to
provide for "public ownership or control" of public utilities. In this
interpretation I am wholly unable to concur. The precise method of providing
for the private control of public utilities as distinguished from public
control is the granting of concessions to individuals or companies. The
declaration in paragraph 28 of the Rutenberg concession that the company
which was to be organized should be recognized "as a public utility body
under government control", far from making the concession itself an act of
public control, was merely a reservation of the right of public control,
whenever the government should see fit to exercise that right. The
recognition of the distinction between public control and private control,
as here stated, is by no means confined to English-speaking countries. The
contest between the two systems may be said to run through the world.
[181] The precise meaning of the phrase "public ownership or control" in
Article �is indeed clearly shown by the second paragraph of the article,
which authorizes the Administration to arrange with the Jewish agency,
mentioned in Article 4 of the Mandate, to construct and operate public
works, services and utilities, "in so far as these matters are not directly
undertaken by the Administration". This is undoubtedly what the words mean
in the English text; and, expressing my individual impression, derived from
a studious comparison of the two texts, I strongly incline to the believe
that the French text, in the present instance, is a so-called "literal"
translation of the English text, and was intended to mean the same thing. A
"literal" translation, however, is often only a verbal imitation, which, if
taken alone, may be so interpreted as to pervert or even destroy the meaning
of the other text. But I take the two texts as they stand, discarding
neither in favour of the other; and, without discussing the question whether
a mandate, which is in a sense a legislative act of the Council, is on the
same legal footing as a treaty, I accept for the present case the rules laid
down by authorities on international law for the interpretation of treaties.
[182] Bonfils, in discussing the interpretation of treaties, lays down the
[p70] rule that each clause should be interpreted in the sense which best
reconciles the rights and duties of the contracting Parties {d'interpréter
chaque clause dans le sens qui concilie le mieux les droits et les devoirs
antérieurs des deux contractants). (Bonfils, Manuel de Droit int. public,
7th edition, by Fauchille, Paris, 1914, p. 571). Rivier likewise declares
that it is necessary before all to ascertain the common intention of the
Parties -"id quod actum est". (1l faut avant tout constater la commune
intention des Parties, etc.) (Rivier, Principes du Droit des Gens, Paris,
1896, vol. 2,
p. 122). But Rivier also points out another rule, to the effect that, if
there is a difference as to the sense which usage gives to the text,
preference is given to that of the country which is bound. (S'il désaccord
quant à I'usage, on s'en tiendra plutôt a celui du pays qui s'oblige.) As an
example of the application of this rule, Rivier cites the case of Article 14
of the Austro-Italian Treaty of peace of October 3rd, 1866, which mentioned
the inhabitants (habitants) of the ceded territory. This word had a
different official technical sense in Austria and in Italy. In Austria an
inhabitant (habitant) meant a person having a legal domicile; in Italy, a
simple resident. As Austria was ceding a territory which belonged to her
when the treaty was made, the word was taken in the Austrian sense (Id., pp.
123—125). This example is directly applicable to the situation of Great
Britain in Palestine.
[183] Among those who concur in the judgment of the Court, an impression
seems to prevail that the rules here laid down have been observed; but I am
unable to share that impression. On the contrary, in the emergency, there
has suddenly been discovered in the English text an unnatural and previously
unheard of elasticity, which had made it unnecessary to try the suggested
possibilities of the French text.
[184] I will deal very briefly with the passage quoted in the judgment of
the Court from the preliminary Counter-case filed by the Agent of the
British Government and the passage quoted from his oral argument ; and I
will not discuss the latter passage separately, as it adds nothing
substantial to the former. In the passage quoted from the preliminary
Counter-case it is stated that the Mandatory, when providing for public
ownership or control, is subject to any international obligations which he
has accepted. This in effect merely repeats the language of Article 11, as
to the existence of which there can be no dispute. But, as an explanation of
what he [p71] means, the Agent of the British Government states that the
League of Nations is pledged "to the maintenance of various beneficent
principles, such as freedom of transit and communication, equality of
commercial opportunity for all Members of the League, suppression of the
arms traffic, and so forth", and that "this is the type of international
obligation which the Mandatory has accepted and to which any concessions
granted under Article 11 of the Mandate must conform". The judgment of the
Court then textually quotes from the preliminary Counter-case a passage
immediately following, in which the Agent observed that the Rutenberg
concessions "were obliged to conform to this Article 11", and that it would
have been open to any Member of the League to question any provisions which
infringed the international obligations which the Mandatory had accepted.
Here the quotation ends. But immediately after the quoted passage, the Agent
goes on to declare that "there is nothing in this article which affects the
Mavrommatis case"; and he further states that the questions raised by the
application relate only to the extent to which the concessions granted to M.
Mavrommatis are valid and binding on the Mandatory, and that this does not
fall within the Mandate. This contention is consistent with the position
taken in the plea to the jurisdiction, that the subject of "the recognition
of concessions in Palestine" is exclusively governed by the Lausanne
Protocol and that, as this instrument does not provide for the submission to
the Court of disputes relating to its interpretation and application, the
Court cannot take cognizance of such disputes.
[185] It is admitted that the phrase "subject to any international
obligations accepted by the Mandatory , no matter what its ultimate
potentialities may be, actually refers to the Concessions Protocol of
Lausanne, which the applicant has in fact invoked. The original draft of the
Mandate mentioned the concessions stipulations of the Treaty of Sévres and
nothing else ; but, after the Treaty of Sévres was abandoned, the phrase was
put in the form in which it now stands. Although, by reason of certain
political incidents, the Mandate did not actually come into force until
September 29th, 1923, its terms were definitively settled and approved by
the Council on July 24th, 1922 (Official Journal, 1922, p. 825) ; and, as
the Lausanne Treaty was signed on July 24th, 1923, a year later, the Mandate
naturally did not mention it. Both at Sévres and at Lausanne, [p72] the
subject of concessions was, from first to last, specially and separately
dealt with. The Powers, including Great Britain and Greece, in their
negotiations with Turkey, adopted this plan. Concessions often involve
considerations of public and political interest. Articles 73 and 77 of the
Lausanne Treaty, dealing generally with contracts between governments and
individuals and with contracts between individuals, expressly declare that
their provisions do not apply to concessions.
[186] The Parties to the Lausanne Protocol No. XII, dealing specially with
the subject of concessions, are the British Empire, France, Italy, Greece
and Turkey. The Protocol is divided into two sections. The first section,
embracing Articles 1 to 8, relates to concessions in territory remaining to
Turkey; the second, embracing Articles 9 to 13, related to concessions in
territory detached from Turkey. The provisions of the first section are,
however, with certain exceptions, made applicable by Article 10 to
concessions in detached territory. Among the articles thus made applicable
to detached territory are Articles 4,5 and 6, which contain provisions
relating to the readaptation of concessions to "the new economic
conditions", the settlement of accounts, and the dissolution, on the request
of the concessionnaire, of concessions for which the right of readaptation
cannot be claimed. Periods ranging from six months to a year are allowed for
such transactions; and, if the Parties cannot agree upon the terms of
readaptation, or upon the indemnity, if any, to be paid in case of
dissolution, or upon the settlement of accounts, provision is made for the
appointment of two experts and, if they should disagree, for the selection
of a third to decide. The Protocol, having at length come into force, now
constitutes a legal obligation between the Parties to the present suit; and,
if its terms are less favourable to individuals holding or claiming
concessions than might have been desired, this Court has no power to correct
its defects.
[187] There can be no doubt that the Protocol was understood by the
contracting Parties to cover the entire subject of concessions. This is
shown by its elaboration of principles and the provision of machinery for
their application. If anything is lacking, only the voluntary action of the
contracting Parties can now supply it. The judgment of the Court admits as
much, when it states that the Court [p73] has no compulsory power to
interpret and apply the Protocol as such, since the Protocol itself confers
no such power. The judgment however, further states that the Court is
competent to apply the Protocol in the measure which Article 11 of the
Mandate requires. This is indeed self-evident ; but, when we search for
particulars, we are brought back to the laboured conjecture that the
granting of the Rutenberg concession was or may have been an exercise of the
power "to provide for public ownership or control", and to the supposition
that the question whether the Jerusalem concessions are entitled to
readaptation under the Protocol falls under Article 11. The former I have
already discussed. The latter is, in my opinion, solely a question under the
Protocol as such, and therefore not within the compulsory power of the
Court. Article 11 could apply to concessions covered by the Lausanne
Protocol only in the case the Mandatory should, in the exercise of the power
to provide for public ownership or control, disregard an existing concession
which the Protocol protects.
[188] But, no matter what the jurisdictional possibilities in respect of the
Protocol might be, I think that, as between the contracting Parties,
governments ruling over territories detached from Turkey are clearly
entitled, now that the Protocol has come into force, to full opportunity to
consider, discuss and apply its provisions as a whole, and that its regular
and orderly application should not be frustrated or interrupted by a suit
based on a previous expression of opinion on a single point, concerning
which there have been no negotiations between the governments. This
objection to the pending application has not passed unperceived; but, in the
judgment of the Court, it is met with a conception of jurisdiction which
has, I believe, materially contributed to the difference of opinion which
has taken place. The judgment states that, while the "special jurisdiction"
which the Protocol creates, for the assessment of indemnities and other
matters, excludes as regards those matters the "general jurisdiction given
to the Court in disputes concerning the interpretation and application of
the Mandate" ; yet, "on the other hand, the provisions regarding
administrative negotiations and time limits in no way exclude the
jurisdiction of the Court", since "their effect is merely to suspend [p74]
the exercise of this jurisdiction until negotiations have proved fruitless
and the times have expired". But, under this theory of suspended
jurisdiction, what becomes of the provision, in Article 26 of the Mandate,
by which the jurisdiction of the Court is in every event limited to
"disputes" which "cannot be settled by negotiation" ? How can this
jurisdictional condition be said to be fulfilled, when periods of time, yet
to run, are fixed for "administrative negotiations" ? Who can say how such
negotiations would result ? On what principle can it be assumed that they
will result in a disagreement ? It is evident that, if the Court may assert
jurisdiction of a conjectural future dispute in an abstract sense, and hold
jurisdiction of the matter pending the happening of an event which will show
whether a dispute, in an actual, concrete sense, will ever exist, the Court
might become a mere makeweight in negotiations. Nor is this the only reason
for rejecting the theory of suspended jurisdiction. It is a well-settled
principle of public law that it is inadmissible for courts to assert
jurisdiction where, even though there should exist some present ground for
complaint, it appears that, for the time being, the power to deal with the
subject matter rests with governments, in the exercise of their political
and administrative functions. Not only is this principle recognized in the
Statute and in the Mandate, but many judicial decisions, national and
international, of the highest authority might readily be cited to show the
respect which has been paid to it as a principle essential to the regular
legal administration of public authority and the maintenance of the public
order.
[189] The plea presented by the defendant Government in the present case is
what is commonly and technically known as a "plea to the jurisdiction". The
word "jurisdiction" signifies "the authority by which judicial officers take
cognizance of and decide cases", "the power to hear and determine a cause".
(Bouvier, Law Dictionary, "Jurisdiction".) This definition inplies that a
court cannot assert jurisdiction of a case which it has not at the same time
the power to hear and decide. The plea to the "jurisdiction " was in effect
a motion to dismiss the application because the allegations which the
applicant had made showed that the court could not law-fully proceed to try
the merits of the claim and render judgment [p75] upon it. The plea did not
raise any question as to the truth of the allegations; for the purposes of
the case, the plea admitted them to be true. Nor did the plea mean that the
Court lacked the power to consider the allegations. On the contrary, it
meant that the Court not only had the power to consider them, but was
legally bound to do so ; and that, taking them as a whole, and accepting
them just as they stood, the Court could not legally proceed to hear and
determine the merits of the cause, and therefore could not legally assert
jurisdiction of it for that purpose.
[190] In disposing of this plea, I think that the Court would, on the facts
before it, have adopted an obviously appropriate and legal course, if it had
dismissed the present application.
The Hague, August 30th, 1924.
(Signed) John Bassett Moore. [p76]
Dissenting Opinion by M. De Bustamante.
[191] I, THE UNDERSIGNED, cannot, for reasons of which the principal are set
out below, concur in the judgment rendered by the Court with respect to its
jurisdiction in the Mavrommatis Case.
[192] In order to arrive at a decision regarding the preliminary plea to the
jurisdiction made by His Britannic Majesty's Government in reply to the
Application and Case of the Government of the Greek Republic concerning the
Mavrommatis Palestine Concessions, the nature of the question, submitted to
the Court by the latter Government must, above all, be taken into
consideration.
[193] The Greek Government in its Case dated May 22nd, 1924, requests the
Court to give judgment as follows:
(a) With respect to the Jerusalem Concessions for the construction and
working of a system of electric tramways and supply of electric light and
power and of drinking water in that city according to the definitive
contracts signed with the Ottoman authorities on January 27th, 1914:
(1) That these concessions having been begun to be put into operation, the
British Government, in its capacity of Mandatory for Palestine, is bound to
maintain them and to agree to their readaptation to the new economic
conditions of the country or to redeem them by paying the claimant
reasonable compensation;
(2) That having in fact already made its choice by rendering impossible,
directly or indirectly, the carrying out of the works for which the claimant
holds a concession, it must pay him compensation;
(3) That taking into account all the various elements of the loss occasioned
to the claimant, he shall receive fair and reasonable compensation by means
of the payment to him of the sum of £121,045 together with interest at 6 %
from July 20th, 1923, until the date on which judgment is given. [p77]
(b) With respect to the Jaffa concessions:
(1) That the fact that these were granted after October29th, 1914, does not
justify the British Government in refusing to recognise them;
(2) That the fact that they were not confirmed by Imperial Iradé, which is a
simple formality not to be withheld at discretion, does not deprive them of
their international value;
(3) That though the British Government in its capacity as Mandatory for
Palestine is at liberty not to maintain them, it is nevertheless under an
international obligation to compensate their holder for the loss it has
inflicted upon him by deciding -as it has done -not to allow him to proceed
with them;
(4) That taking into account all the elements of the loss thus sustained by
the claimant, he shall receive fair and reasonable compensation by means of
the payment to him of the sum of £113,294 together with interest at 6% from
July 20th, 1923, until the date on which judgment is given.
[194] On page 8 of the Greek Government's Case it is stated that, from the
end of October 1922, M. Mavrommatis'negotiations with the British Government
entered upon a new phrase owing to the very intransigent attitude adopted by
the Colonial Office.
[195] It is very important to note that the Greek Case recognizes the
British Government's right not to recognize or put in execution the
concessions in question, and that it confines itself to a claim for an
indemnity on the ground of that Government's refusal to recognize them and
to readapt them to the new economic conditions of the country.
[196] It should also be noted that the Greek Government asks for nothing for
itself and that in the Case reference is always made to an indemnity to be
paid, not to the Greek Government, but to the beneficiary under the
concessions.
[197] The jurisdiction of the Court to entertain this Case has been based on
the Mandate for Palestine conferred on the British Government by the Council
of the League of Nations on July 24th, 1922, but which did not come into
force until September 29th, 1923. [p78]
[198] The Mandate is not mentioned in the Case of the Greek Government,
which only considers the provisions of Protocol XII of the Treaty of Peace
with Turkey signed at Lausanne on July 24th, 1923. In the application
instituting proceedings however, the Greek Government expressly mentions
Articles 26 and 11 of the Mandate for Palestine which run as follows:
Article 26.
The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations.
Article 11.
The Administration of Palestine shall take all necessary measures to
safeguard the interests of the community in connection with the development
of the country, and, subject to any international obligations accepted by
the Mandatory, shall have full power to provide for public ownership or
control of any of the natural resources of the country or of the public
works, services and utilities established or to be established therein. It
shall introduce a land system appropriate to the needs of the country,
having regard, among other things, to the desirability of promoting the
close settlement and intensive cultivation of the land.
[199] The Administration may arrange with the Jewish agency mentioned in
Article 4 to construct or operate, upon fair and equitable terms, any public
works, services and utilities, and to develop any of the natural resources
of the country, in so far as these matters are not directly undertaken by
the Administration. Any such arrangements shall provide that no profits
distributed by such agency, directly or indirectly, shall exceed a
reasonable rate of interest on the capital, and any further profits shall be
utilised by it for the benefit of the country in a manner approved by the
Administration. [p79]
[200] By a careful perusal of Article 26 of the Mandate it will be noted
that the Court's jurisdiction is subordinate to several conditions, of three
of which special mention must be made. The dispute must relate to the
interpretation or application of the terms of the Mandate. The dispute must
not be a dispute which has already arisen, but a dispute which may arise.
Further, this dispute must be between the Mandatory and another Member of
the League of Nations.
[201] It will readily be seen that Article 11 of the Mandate imposes upon
the Mandatory no obligation to pay compensation and that it contains no
express or implicit reference to concessions granted by Turkey. This is
perfectly reasonable. Turkey is not a Member of the League of Nations and
the fate of concessions granted before the military occupation of Palestine
by the British Army during the Great War could not be settled except in
agreement with Turkey. This is the reason why the concessions are not
mentioned in the Mandate and why, on the other hand, they have been made the
subject of special provisions in the discarded Treaty of Sévres of August
10th, 1920, and in the Treaty of Lausanne, the ratifications of which were
deposited on August 6th, 1924. I will not dwell on the untenability of the
argument that the question relates to the interpretation or application of
Article 11 of the Palestine Mandate, even with respect to the nature of the
international obligations accepted by the Mandatory ; and this, not only
because the point has been completely established by certain of my
colleagues but also because the two other objections, which I will now
proceed to consider, render such insistence somewhat superfluous.
[202] I must however observe that if the Application and Case of the Greek
Government are to be read as meaning that the dispute relates to preliminary
points in connection with the application of certain provisions of Protocol
XII, it is clear that the question is not one of interpreting or applying
the Mandate but of interpreting the Protocol. Now the interpretation of the
Protocol is not within the jurisdiction of the Court, for there is no clause
of the Protocol or the Treaty of Lausanne establishing that jurisdiction.
[203] It will have been observed that the Mavrommatis Concessions were
obtained from the Ottoman authorities and it is stated in the Greek
Government's Case that M. Mavrommatis approached the representatives of the
British Government in Palestine and London [p80] as early as April 16th,
1921 ; but from the month of October, 1922, he is stated to have been faced
by an intransigent attitude on the part of the Colonial Office. Moreover, as
the Mandate did not come into force until September 29th, 1923, it is clear
that the facts on which the Case is based date from before the Mandate and
from before the time when the British Government acquired the legal position
of Mandatory, which it did only as from September 29th, 1923. In other
words, retrospective effect must be attributed to the Mandate in order to
maintain that the terms of Article 26 are applicable.
[204] Before the coming into force of the Mandate, Great Britain had no
other title to the exercise of public power in Palestine than that afforded
by its military occupation. Whatever responsibility might devolve upon it in
consequence of its acts whilst in military occupation, a dispute concerning
such responsibility cannot be entertained by the Court under Article 26 of
the Mandate. That article contemplates the future, not the past. The
Mandatory agrees that if any dispute whatever should arise (not a dispute
which has arisen) between the Mandatory and another Member of the League of
Nations, such dispute shall be submitted to the Permanent Court. If language
has any value in legislation and in treaties, it is impossible to interpret
a verb used in the future as referring to acts which have already taken
place. Moreover the League of Nations has not given any retrospective effect
to the position of the Mandatory. In conformity with Article 22 of the
Covenant, the Mandatory must send the Council an annual report concerning
the territories which it administers, and a permanent Commission has been
appointed to receive and examine these annual reports and to give the
Council its opinion on any question regarding the execution of the Mandate.
This Commission completed its task when, in connection with its Fourth
Session held only a few weeks ago, it submitted to the Council on July 16th,
a report of which the part devoted to Palestine contained the following
words: "The Commission, although it was not called upon to examine any
report concerning the administration of Palestine because of the recent
coming into force of the Mandate", etc.
[205] If the League of Nations, which fixed the terms of the Mandate for
Palestine, and of which Greece is a Member, appears to recognize that the
British Government was only in the position of Mandatory as from the coming
into force of the Mandate, and if the facts alleged [p81] in the Greek
Government's Case occurred before that date, the logical conclusion is that
the dispute is not one between the Mandatory and a Member of the League of
Nations but rather between the British Government, being in military
occupation of Palestine, and M. Mavrommatis, represented before the Court by
the Greek Government.
[206] It has been alleged that the Rutenberg Concessions fall within the
scope of Article 11 of the Mandate and that they afford justification for
the application of Greece because they render the carrying out of the
Mavrommatis Concessions impossible. It appears that of the two Jerusalem
concessions granted to M. Mavrommatis, one only, that for electric power is
affected by those of Mr. Rutenberg; the latter however were granted to Mr.
Rutenberg on the 12th and 21st September, 1921. This being so, and since the
Mandate did not come into force until September 29th, 1923, two years after
these concessions, the fact that the Mandate has no retrospective
application is also opposed to the argument in question and to this method
of establishing the Court's jurisdiction.
[207] There is a further circumstance which proves that the Court has no
jurisdiction. Great Britain is not the sovereign of Palestine but simply the
Mandatory of the League of Nations and she has accepted the Permanent
Court's jurisdiction for any dispute arising between her, as Mandatory, and
any Member of the League from which she holds the Mandate. As the latter
could not appear as a party to a dispute concerning the application or
interpretation of the Mandate, having regard to the restrictive terms of
Article 34 of the Court's Statute, it is the Member of the League who have
been authorized, in their capacity as Members, to bring before the Court
questions regarding the interpretation or application of the Mandate.
[208] Whenever Great Britain as Mandatory performs in Palestine under the
Mandate acts of a general nature affecting the public interest, the Members
of the League -from which she holds the Mandate -are entitled, provided that
all other conditions are fulfilled, to have recourse to the Permanent Court.
On the other hand, when Great Britain takes action affecting private
interests and in respect of individuals and private companies in her
capacity as the Administration of Palestine, there is no question of
juridical relations between the Mandatory and the Members of the League from
which she holds the Mandate, but of legal relations [p82] between third
Parties who have nothing to do with the Mandate itself from the standpoint
of public law.
[209] The mere fact that a Member of the League of Nations represents third
Parties does not alter the nature of the problem, because in so doing the
State is not acting as a Member of the League which issues the Mandate, but
as a third Party, its intervention as such being consequent upon the acts of
the Mandatory with respect to the actual third Party. Acts performed in such
circumstances are not subject to the jurisdiction of the Permanent Court
under Article 26 of the Mandate.
[210] If the claims of third Parties, put forward on their behalf by a
Member of the League of Nations, were subject to the jurisdiction of the
Court under the Mandate, an express statement to that effect would have been
necessary, since it is a thing entirely different from that which is now
clearly expressed in Article 26.
[211] Four days before the signing of the Palestine Mandate a provision of
this sort was inserted in Article 13 of the Mandate for East Africa signed
at London on July 20th, 1922. This Mandate contains an Article 13 which runs
as follows:
Article 13.
The Mandatory agrees that if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations.
[212] After this passage, which is reproduced word for word in the Palestine
Mandate, is to be found in this same Article 13 of the East African Mandate,
a second paragraph which runs as follows:
States Members of the League of Nations may likewise bring any claims on
behalf of their nationals for infractions of their rights under this Mandate
before the said Court for decision.
[213] After reading this Article 13 of the Mandate for East Africa, it will
at once be observed that claims on behalf of the nationals of States Members
of the League of Nations, for infractions of their [p83] rights under that
Mandate, are not included among the disputes mentioned in the first
paragraph of the article, the only one which has been reproduced in the
Mandate for Palestine. It will also be observed that the Mandate for
Palestine signed four days afterwards, in which this second paragraph does
not appear, must exclude from the jurisdiction of the Permanent Court the
claims of M. Mavrommatis which are supposed to be based on an infraction of
his rights under the Mandate.
[214] It cannot be said that this second paragraph of Article 13 of the East
African Mandate contemplates disputes between private interests concerning
neither the interpretation nor the application of the Mandate. Quite the
contrary; it expressly lays down that there must have been an infraction of
rights under the Mandate.
[215] The Treaty of Lausanne and Protocol XII annexed thereto are of the
greatest importance in this discussion. They are an instrument signed by the
interested Parties which fixes their interpretation of Article 26 of the
Mandate and also of Article 11. The Parties desired to effect a separate
settlement of the whole question of Ottoman concessions, and they have done
so in this Protocol of Lausanne without giving the Permanent Court
jurisdiction over the matter. This is yet another method of fixing the
interpretation of Article 26 which does not give the Court jurisdiction in
the Mavrommatis case.
[216] The sole object of Protocol XII is to regulate the treatment of
Ottoman concessions, and it contemplates all the hypotheses under which
those of M. Mavrommatis may be included. As regards the indemnities which
the Court is asked to award, Article 5 of the Protocol lays down a procedure
by experts and makes no provision for the jurisdiction of the Permanent
Court. Since the contracting Powers have specifically referred to all
Ottoman concessions previous to its coming into force, the Protocol
undoubtedly has a retrospective effect. Moreover, as it constitutes an
agreement between the litigant Parties, which has come into force during the
course of the proceedings, with regard to the question in dispute, it
suffices to terminate them.
[217] Any one of these reasons would be enough to show that there was no
jurisdiction, and taken together they have an irresistible effect. The
present case relates neither to the interpretation nor the application of
the Palestine Mandate. The facts leading up to the present suit took place
long before the existence and entry into force of the Mandate, which has no
retrospective effect. There is [p84] no dispute between the Mandatory and a
Member of the League of Nations which issued the Mandate, but rather between
the Power in military occupation of Palestine and a third Party which is a
private person who claims an indemnity. The whole question of the Ottoman
concessions, and also therefore the Mavrommatis concessions, has been dealt
with by the Parties in the Protocol, which is now in force and which does
not give the Court jurisdiction over the matter. The Court therefore has no
jurisdiction and cannot now entertain the proceedings on the merits of the
dispute.
The Hague, August 30th, 1924.
(Signed) Antonio S. De Bustamante. [p85]
Dissenting Opinion by M. Oda.
[Translation.]
[218] Since the compulsory jurisdiction of the Court is not the rule and
since Article 26 of the Palestine Mandate constitutes an exceptional clause
creating such jurisdiction, that article cannot be interpreted extensively.
[219] According to Article 26, in order that a dispute may be submitted to
the Court, the following conditions must be fulfilled: (1) it must be a
dispute between a Member of the League of Nations and the Mandatory; (2) it
must be incapable of settlement by negotiation; and (3) it must relate to
the interpretation or the application of the terms of the Mandate.
[220] Of these three conditions, the two first are matters of form and the
last of substance.
[221] On the facts as set out by the Parties, it is very difficult
definitely to state that the formal conditions have been fulfilled. The
dispute, in the first place, was only between the Colonial Office and a
private person, and after the intervention of the Greek Government to
protect this person, there was only a single exchange of views between the
Foreign Office and the Greek Legation in London. Even assuming the formal
conditions to be fulfilled, the condition of substance is entirely lacking.
The dispute, which relates to the validity of certain concessions and to the
vindication of certain rights which, in the contention of the
concessionnaire, have been prejudiced, has nothing whatever to do with
either the interpretation or the application of the terms of the Mandate.
[222] The history of the preparation of Article 11 of the Mandate shows that
for unavoidable reasons the present reservation was substituted for that
contained in the original draft which ran "subject to Article 311 of the
Treaty of Peace with Turkey"; it is therefore perfectly reasonable to regard
the present version as possessing the same scope -neither more not less -as
the original one. Assuming this to be correct, there is no doubt that the
international obligations accepted by Great Britain, referred to in the
present version, are those arising out of the special provisions of a
convention -such as the Protocol of Lausanne in the present case -and that
they are entirely unconnected with the legal relationship created by the
Mandate. [p86]
[223] The position as Mandatory has no bearing on the conclusions to be
drawn from the Protocol, since the relations created by the Mandate, which
exist as between the League of Nations and Great Britain only, are not if so
facto applicable as between the Powers signatory to the Protocol. The word
"Mandatory" in the reservation made in Article n is merely used for the sake
of convenience in order to keep to the terminology used in other articles of
the Mandate. The legal relationship resulting from the Mandate, which only
exists as between Members of the League of Nations, must be distinguished
from the obligations arising out of the principle of State succession, which
may be binding on all States throughout the world, including Members of the
League of Nations, quite apart from the obligations arising under the
Mandate. It must also be remembered that the Mandatory has to assume certain
special and burdensome obligations over and above those arising out of his
position as successor State, and that consequently these obligations of the
Mandatory do not in any respect extend beyond the limits fixed by the
Mandate.
[224] Considered in this light the Protocol of Lausanne is neither a special
statute nor a set of rules to be regarded as the complement of the Mandate.
Its provisions are entirely distinct and cannot in any sense form part of
the terms of the Mandate. It follows therefore that the dispute regarding
the concessions granted under the Ottoman Empire has nothing to do either
with the interpretation or the application of the terms of the Mandate and
is not by its nature within the Court's jurisdiction.
[225] Since the Mandate establishes a special legal relationship, it is
natural that the League of Nations, which issued the Mandate, should have
rights of supervision as regards the Mandatory. Under the Mandate, in
addition to the direct supervision of the Council of the League of Nations
(Articles 24 and 25) provision is made for indirect supervision by the
Court; but the latter may only be exercised at the request of a Member of
the League of Nations (Article 26). It is therefore to be supposed that an
application by such a Member must be made exclusively with a view to the
protection of general interests and that it is not admissible for a State
simply to substitute itself for a private person in order to assert his
private claims. That this is the case is clearly shown by a reference to
Article 13 of the Mandate for East Africa, in which Members of the League of
Nations are specially authorized to bring [p87] claims on behalf of their
nationals. It is impossible to ascertain why this special provision was only
inserted in the East African Mandate ; but, as it appears that in all the
drafts of "B" Mandates the same provision was inserted, but deleted in the
final documents, except in the case of the Mandate for East Africa, it is at
all events clear that it was intended to establish a difference between "B"
and "A" Mandates to which latter category the Palestine Mandate belongs. The
logical conclusion is that an action in support of private interests is
excluded under Article 26 of the Mandate now in question, and that,
precisely from this standpoint, the Court has no jurisdiction in the case of
the Mavrommatis concessions.
(Signed) Y. Oda. [p88]
Dissenting Opinion by M. Pessôa.
[Translation.]
[226] I have expressed my vote to the effect that the Court has no
jurisdiction in this suit.
[227] Article 26 of the Mandate for Palestine runs as follows:
"The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations."
[228] The Greek Government maintains that the Mavrommatis claim is a dispute
relating to the interpretation and the application of Article 11 of the
Mandate, and therefore falls within the jurisdiction of the Court.
[229] But, in order that it shall be legitimate for the Court to deal with a
question, it is not sufficient that it be one relating to the actual
interpretation and the application of the Mandate; it is further necessary,
as follows from Article 26, that the dispute shall have arisen between two
States and that it cannot be settled by diplomatic negotiations. Such
diplomatic settlement may be shown to be impossible either by the nature of
the dispute itself or by the failure of the negotiations.
[230] These two conditions are also substantial. The first is closely
related to the nature of the Court, to its particular duties and to its
international mission. The Parties which may appear before the Court being
States, it cannot be called upon to protect the rights of individuals, but
only those of States. The other condition gives expression to the respect
due to the sovereignty of nations. As being sovereign they have the
fundamental right to settle their disputes between themselves, and the
interposition of an outside authority is only understandable when the former
solution cannot be arrived at.
[231] Neither of these two conditions is fulfilled by the suit submitted to
the Court.
[232] Mavrommatis obtained from the Ottoman Government, between [p89] 1911
and 1914, certain concessions, and he maintains that, in 1921, the British
Government as Mandatory in Palestine violated these. Mavrommatis protested,
and from that moment onwards he discussed the question of his rights
personally and directly with the British Government.
[233] It was only on December 22nd, 1922, that the Greek Government
intervened. But for what purpose did it intervene ? To espouse the
Mavrommatis claim and to negotiate for its settlement ? By no means ; it
merely intervened for the purpose of forwarding to the Foreign Office a
letter of Mavrommatis in which the latter, after giving the Greek Government
a detailed statement of his claim, declared that he was inclined to appeal
to the League of Nations.
[234] Here is the proof of this:
“I am therefore obliged to appeal to the Tribunal of the League of Nations
provided for by Article 311 and 312 of the Treaty together with the first
paragraph of Article 287, and to pray to take the necessary steps to bring
my case before the Competent Authority, so that, as soon as possible,
consideration may be given to my request”.
(Letter from the Greek Agent to the Registrar of the Court, dated May 26th.)
[235] The Foreign Office replied that as the matter was in the hands of the
Colonial Office, it would be much simpler and more speedy to deal direct
with that Office:
"I understand that the Colonial Office are still in correspondence with this
gentleman's solicitors in this matter.
"In the circumstances it appears to me quite unnecessary for this Department
to intervene, as matters can be settled much more expeditiously and
satisfactorily by means of direct discussion between the Colonial Office and
M. Mavrommatis' solicitors, who are parties principally concerned and who
possess first-hand knowledge of the points at issue." (Ib., page 8.)
[236] And that is all.
[237] Up to this point then there had been no negotiations between the two
States.
[238] After this date two further steps were taken by the Greek Government.
[239] The first was the letter of January 27th, 1923. But in this letter
[p90] Greece does not yet put forward its claim; nor yet does it discuss the
reasons alleged against this claims on behalf of Great Britain; it merely
asks the British Government what is its opinion with regard to the
Mavrommatis claims:
"After these explanations I hope you will be able to kindly see your way to
inform me what is the view of His Majesty's Government on the matter, and
venture to hope that a settlement will be possible in the near future."
(Ib., page 8.)
[240] The other step is constituted by the letter of January 26th, 1924.
This time it might be expected that the Greek Government was going to state
that it undertook the defence of its national, to set out his titles and to
prove his rights ; to discuss the reasons put forward by the Colonial
Office. Not so ; Greece still persists in asking the opinion of the British
Government and informs it that Mavrommatis'solicitors
(Mavrommatis'solicitors and not the Greek Government) suggest recourse to a
Court of Arbitration:
"In these circumstances, I should be grateful to you if you could see your
way to letting me know the views of His Majesty's Government on the matter
and whether, in their opinion, M. Mavrommatis' claim could not be
satisfactorily met.
"I have the honour to add that M. Mavrommatis' solicitors suggested that he
would be prepared to submit -should such a course be agreeable to His
Majesty's Government -the examination of the matter to a Court of
Arbitration." (Ib., page 10.)
[241] Thus we have so far no dispute and no negotiations between States.
[242] Let us go further.
[243] Great Britain, on April 1st replied that its intention was to
recognize M. Mavrommatis' rights as far as concerned the Jerusalem contract,
but not the Jaffa or the Jordan concessions; and it stated its reasons. It
might be expected that once the Greek Government's curiosity was satisfied,
the British Government's intention having been made known, Greece would also
at length decide to state what she thought of the matter, to set forth her
arguments in law and in equity and to refute those of her opponent. It is
possible that in the face of these arguments the British Government would
have decided either to abandon its own Case or at any rate to modify it.
[p91] How many times has it happened that for reasons of courtesy or other
considerations one nation has made to another concessions which it would not
make to a national of such other State!
[244] Well, once again Greece said nothing as to her view of the Mavrommatis
concessions ; nor did she formulate any claim on the subject ; she simply
wrote a letter to the British Government announcing that she intended to sue
that Government before the International Court of Justice !
[245] Such are the facts. Having regard to them, can it be asserted that
there was a dispute between Greece and Great Britain in regard to the
Mavrommatis concessions, and that, for the purpose of settling it,
negotiations took place between the two Governments?
[246] Negotiation consists of debate or discussion between the
representatives of rival interests, discussion during which each puts
forward his arguments and contests those of his opponent. Now, I ask to be
shown a single document in which Greece stated its claim and put forward its
arguments in support. There is not one. I ask to be told at least what these
claims and what these reasons are. Nobody knows.
[247] There is no doubt that International Law lays down no protocol or
formulae for negotiations; but in order that the existence of negotiations
may be recognized, it naturally requires that they shall have taken place'in
some form or other. In the present case we have not before us any
negotiations that have taken place in any form whatever. There is a complete
absence of negotiations.
[248] It must further be remarked that under Article 26 of the Mandate, the
mere fact that negotiations have taken place between the two Governments
does not suffice to bring a question within the jurisdiction of the Court;
it is further indispensable that either the conflict from its very nature
cannot be settled by negotiation or else that negotiations shall have
failed. The fact of requiring such negotiations is, as I have already
stated, a tribute to the sovereignty of nations ; the principle is that all
disputes shall be settled between the nations concerned themselves. The
Court can only interpose its authority when such solution is recognized as
impossible.
[249] Now the dispute is clearly not one which cannot be settled through
diplomatic channels; and even if it be admitted that negotiations have taken
place, where is to be found the proof that such a settlement has been found
impossible? [p92]
[250] It is said that Great Britain, in her reply to the Greek Government,
at once declared that her views on the matter were capable of no
modification.
[251] I beg to be excused if I state that this is not correct. Great Britain
said that she recognized Mavrommatis'rights as far as concerned Jerusalem ;
that she was not prepared to recognize the Jaffa concession and that she
denied the existence of the Jordan concession. The only claim which she
definitely rejected was therefore the Jordan one ; and even in this case she
relied on the absence of a document ; she would perhaps change her opinion
if this document was presented to her:
"The Jerusalem concessions, as M. Mavrommatis'solicitors have been informed,
are the only ones which His Majesty's Government are prepared to recognize,
subject to the production of the original signed copies of the document and
to their being found in order, since they alone arose out of an agreement
entered into with the Ottoman Government before October 29th, 1914
"The Jaffa concessions were signed at a date subsequent to October 29th,
1914, and, as
M. Mavrommatis has already been informed, His Majesty's Government are not
prepared to recognize that he possesses any right in respect of them ....
"In regard to the third group, the Jordan concessions, no concessionary
contract was actually completed or signed and M. Mavrommatis has already
been informed that His Majesty's Government do not recognise that he has any
rights in this area whatsoever." (Ib., pp. 12 -13.)
[252] Where is the insurmountable opposition of Great Britain to be found ?
[253] In view of the facts which I have stated, it seems clear to me that
the Mavrommatis affair is in no way a dispute between two States.
[254] Greece is entitled to bring claims on behalf of its nationals, and
that is in my opinion sufficient to give to the Mavrommatis claim an
international character ; but the truth is that Greece, up to the time when
it applied to the Court, had not said what it thought or what it wanted as
regards the Mavrommatis concessions; it had neither explained the nature of
these concessions nor stated what were, in its opinion, their importance or
their extent; it had further put forward no arguments in law to uphold them
nor had it shown the weakness of the British opposition. [p93]
[255] It follows, in the second place, from the facts stated that no
negotiation took place between the two Governments in regard to these
claims; the Greek Government asked the British Government what were its
views with regard to the Mavrommatis contracts; the British Government
stated how it envisaged each of the contracts; the Greek Government made no
reply.
[256] The conclusion to be finally drawn from the facts stated is that the
impossibility of settling the dispute through diplomatic channels has in no
way been proved.
[257] Under Article 26 of the Mandate, however, the Court has jurisdiction
only when these conditions have simultaneously been fulfilled: if the
dispute arises between States and if it cannot be settled by negotiation.
[258] But these conditions are not fulfilled in the suit submitted to the
Court by the Greek Government.
[259] The Court has therefore no jurisdiction to hear and determine it.
(Signed) Epitacio Pessóa.
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