|
[p5] The Court,
composed as above,
delivers the following judgment:
[1] By a Special Agreement for arbitration, signed at Paris on July 15th,
1931, the French and Greek Governments have agreed to submit to the Court
the dispute which has arisen between them as a result of the Greek
Government's refusal to comply with the request of the French Government and
to give satisfaction to the French firm Collas & Michel, known as the
"Administration générale des Phares de l'Empire ottoman", in a dispute which
had arisen between that firm and the Greek Government concerning the
validity as against Greece of the contract concluded between the firm and
the Ottoman Empire on April 1st/14th, 1913, for the renewal of an existing
concession.
[2] Under Article 2 of the Special Agreement, that instrument was to be
notified to the Registry by either Party, as soon as ratifications had been
exchanged. The Protocol of exchange of ratifications was not produced to the
Court, but the Special Agreement was notified to it by the French Minister
and by the Greek Charge d'affaires at The Hague, who filed the text of the
instrument with the Registry on May 23rd, 1933. The Court considers that
this official notification by the two Parties concerned constitutes adequate
proof of the entry into force of the Special Agreement.
[3] Under Article 1 of the Special Agreement, the Court is called upon
"to give its decision upon the question whether the contract concluded on
April 1st/14th, 1913, between the French firm Collas & Michel, known as the
'Administration générale des Phares de l'Empire ottoman', and the Ottoman
Government, extending from September 4th, 1924, to September 4th, 1949,
concession contracts granted to the said firm, was duty entered into and is
accordingly operative as regards the Greek [p6] Government in so far as
concerns lighthouses situated in the territories assigned to it after the
Balkan wars or subsequently [FN1]".
---------------------------------------------------------------------------------------------------------------------
[FN1] In the text of the Special Agreement communicated to all States by the
Registry in July and August 1933, the words "dûment intervenu" were
trans¬lated "regularly concluded". In the present judgment, the translation
adopted in the Lausanne Protocol XII "duly entered into" is used throughout,
including quotations of Article 1 of the Special Agreement.
---------------------------------------------------------------------------------------------------------------------
[4] The subject of the dispute has thus been indicated in accordance with
Article 40 of the Statute.
[5] The communications provided for in Article 40 of the Statute and Article
36 of the Rules were duly despatched; the Special Agreement was communicated
to Members of the Court on May 23rd, and to States entitled to appear before
the Court on July 29th and August 8th, 1933.
[6] As the Court included on the Bench no judge of Greek nationality, the
Greek Government availed itself of its right, under Article 31 of the
Statute, to appoint one.
[7] In Article 3 of the Special Agreement, the Parties proposed that the
Court should
"fix a period of three months as from the date fixed in the Order made by
the Court for the purpose (the time-limit granted to the Government of the
French Republic and to the Government of the Greek Republic) for the
presentation of their respective Cases setting out their views on the
question and formulating their submissions, and a period of three months as
from the date of filing of these Cases for the presentation of their
Counter-Cases in reply, in which, if necessary, they shall formulate any
additional submissions".
[8] The Agent for the Greek Government having been appointed on June 7th,
1933, and the Agent for the French Government on July 27th, the Court, on
July 28th, 1933, made an Order in which the date last mentioned was fixed as
that from which time-limits should be reckoned. The time-limits fixed by the
Order were in accordance with the proposal of the Parties. In the same
Order, the Court stated that a clause in a Special Agreement, drawn in terms
such as those of the above-quoted Article 3, implied an agreement between
the Parties to waive the right to present a Reply. The time-limit for the
filing of Counter-Cases expired on January 26th, 1934, and the documents of
the written proceedings having been duly filed within the periods fixed, the
case became ready for hearing on that date.
[9] The French Government in its Case prays the Court
"to adjudge and declare that the contract concluded on April 1st/14th, 1913,
between the French firm Collas & Michel, known as the 'Administration
générale des Phares de l'Empire [p7] ottoman', and the Ottoman Government,
prolonging from September 4th, 1924, to September 4th, 1949, concession
contracts granted to the said firm, was duly entered into and is accordingly
operative as regards the Greek Government in so far as concerns lighthouses
situated in the territories assigned to it after the Balkan wars or
subsequently".
[10] The Greek Government, on the other hand, prays the Court in its Case
"to adjudge and declare that the contract concluded on April 1st/14th, 1913,
between the French firm Collas & Michel, known as the 'Administration
générale des Phares de l'Empire ottoman', and the Ottoman Government,
prolonging from September 4th, 1924, to September 4th, 1949, concession
contracts granted to the said firm was not duly entered into and is not
accordingly operative as regards the Greek Government, in so far as concerns
lighthouses situated in the territories assigned to it after the Balkan wars
or subsequently".
[11] These submissions were not amended in the respective Counter-Cases.
[12] In the course of public sittings held from February 5th to 8th, 1934,
the Court heard the oral statements, reply and rejoinder presented:
[13] On behalf of France, by M. Basdevant, Agent for the Government of the
French Republic, and
[14] On behalf of Greece, by M. Politis, Envoy Extraordinary and Minister
Plenipotentiary of the Greek Republic in Paris, entrusted by his Government
with the oral presentation of its case before the Court.
[15] At the oral proceedings, the submissions presented in the respective
Cases were maintained in their entirety by the Parties.
[16] Numerous documents in support of their contentions were filed on behalf
of both Parties, either as annexes to the documents of the written
proceedings or in the course of the oral proceedings [FN1].
---------------------------------------------------------------------------------------------------------------------
[FN1] See list in the Annex.
---------------------------------------------------------------------------------------------------------------------
[17] These are the circumstances in which the Court is now called upon to
give judgment in the case submitted to it by the Special Agreement between
France and Greece of July 15th, 1931.
***
[18] The question submitted to the Court is whether a contract concluded on
April 1st/14th, 1913, between the Ottoman Government and a French firm,
Collas & Michel, renewing the concession for the maintenance of the
lighthouses on the coasts of the Ottoman Empire, was duly entered into and
is [p8] accordingly operative as regards the Greek Government in so far as
concerns lighthouses situated in the territories assigned to Greece after
the Balkan wars or subsequently.
[19] The concession in question, which covers the management, development,
and maintenance of the "system of lights on the coasts of the Ottoman Empire
in the Mediterranean, the Dardanelles and the Black Sea", was first granted
to this firm in i860 for a period of twenty years as from 1864. In 1879,
however, i.e. five years before its expiry, it was renewed for a period of
fifteen years expiring in 1899. It was renewed a second time in 1894, for a
period of twenty-five years, expiring on September 4th, 1924. Finally, in
1913, it was again renewed for twenty-five years, i.e. until September 4th,
1949. It is the contract granting this last prolongation which forms the
subject of the Special Agreement.
[20] From the outset, the concession was based on the following principle:
the concessionnaires, who were authorized to collect lighthouse dues - from
which however war-vessels were exempted - were to be remunerated by the
receipts from this source; the Ottoman authorities were also to place at the
disposal of the concessionnaires, without charge, certain premises including
some to be used as collecting offices. A proportion of these receipts (in
the later contracts 50 %) was reserved to the Ottoman Government. It
appeared that this proportion might usefully be employed as security for
loans, the Government ceding its share of the receipts to the lender until
the sum lent, together with interest, had been repaid in full. On three
occasions, the Ottoman Government had recourse to this expedient; the last
occasion was when the most recent renewal contract was concluded in 1913.
This prolongation of the concession was preceded by negotiations, apparently
extending over a period of about two years and relating also to a new loan
secured upon the receipts from the lighthouse dues.
[21] The circumstances in which the latter renewal contract was concluded
were as follows:
[22] On April 1st/14th, 1913, there was issued a Decree Law - sometimes
described as a provisional law - whereby the Sultan authorized the Ottoman
Minister of Finance to conclude the convention for the renewal of the
concession, and to sign instruments relating to a loan or advance of
£500,000 (Т.), repayable out of the Imperial Government's share of the
light-house receipts; the texts of the convention and the other instruments
were annexed to the Decree. The "convention" was signed on the same day. The
instruments relating to [p9] the loan, including the "contract for an
advance", and the letters authorizing the payment to the lenders of the
Government's share of the lighthouse receipts, were signed on the next day,
April 2nd/15th, 1913.
[23] The Decree Law of April 1st/14th, 1913, was published in the Official
Turkish Gazette of May 14th/27th of the same year. The Turkish Parliament
ratified the Decree Law on December 18th/31st, 1914. The law was promulgated
by a Decree dated December 22nd, 1914/January 4th, 1915, published on
December 26th, 1914/January 8th, 1915.
[24] At the time when the contract of April 1st/14th, 1913, renewing the
concession was made, military operations in the first Balkan war had been
resumed, after the temporary failure (Jan., 1913) of the peace negotiations
initiated in London in December, 1912; these operations were terminated, in
the last days of April, 1913, by the capitulation of Scutari; and the Treaty
of London was concluded on the following 30th of May. It should however be
observed in this connection that, after the capitulation of Adrianople
(March 28th), the Great Powers submitted to the belligerents (March 31st)
preliminary peace conditions, which were accepted on the following day
(April 1st) by Turkey, but were not agreed to by the Balkan Allies until
April 20th. From the very outset of the war, the greater part of Turkey in
Europe had been occupied by the Balkan Allies and, so far as concerns the
Mediterranean coasts and the islands, by Greece. According to the proposal
of the mediating Powers, Turkey was to cede the continental territories thus
occupied to the Balkan Allies; she was to abandon her interest in Crete; and
the question of the Aegean islands was to be left to the aforesaid Powers
for decision.
[25] The Treaty of London followed the main lines of this proposal: Turkey
ceded to the Balkan Allies her possessions on the mainland of Europe, west
of the Enos-Midia line - with the exception of Albania - and also Crete ;
and she left to the Powers inter alia the decision as to the disposal of the
Ottoman islands in the Aegean, with the exception of Crete. In February,
1914, the Powers assigned these islands, with the exception of three (Imbros,
Tenedos and Castellorizo), to Greece.
[26] The Treaty of London, which was not ratified, made no provision in
regard to the treatment of concessions granted by the Ottoman authorities in
the ceded territories. The examination of this question, among others, was
entrusted to a "Financial Commission on Balkan Affairs", which held a first
session in Paris in June-July, 1913, when it drew up certain proposals in
regard to this subject. However, these proposals were never submitted for
the approval of the Powers concerned. [p10]
[27] The second Balkan war was terminated, as regards Greece and Turkey, by
the Treaty of Athens of November 1st/14th, 1913, which came into force on
November 16th/29th of that year. This Treaty maintained the territorial
clauses of the Treaty of London. Under Article 5 of the Treaty of Athens,
rights acquired "up to the time of the occupation of the ceded territories"
were to be respected, subject, however, to the decisions of the Financial
Commission on Balkan Affairs; but that Commission, which was to have held a
second session in September or October, 1914, did not meet again.
[28] After the War of 1914-1918, the relations between Greece and Turkey
were to have been settled by the Treaty of Sevres, of August 10th, 1920, the
signatories of which also included France. Article 311 and the following
articles of that Treaty, which was not ratified, once more laid down rules
for the treatment of concessions granted by the Ottoman authorities,
including those granted in the territories detached from Turkey in 1913
after the Balkan wars, but did not take the commencement of the occupation
of these territories as the material date.
[29] As a result of the events which subsequently took place in Turkey, and
of the situation which developed between Turkey and Greece, the relations
between those two countries were only finally settled by the instruments
which were signed at Lausanne in July, 1923, France being amongst the
signatories. The question of concessions was dealt with in Protocol XII,
attached to the Treaty of July 24th, 1923. That Protocol draws a
distinction, in Article 9, between the territories detached from Turkey
under the said Treaty and the territories which had been detached from that
country after the Balkan wars. In regard to the former, the Protocol fixes
October 29th, 1914, as the decisive date for the recognition of
concessionary contracts; in regard to the latter, it adopts the date of the
entry into force of the treaty under which the territory was transferred, in
each case.
[30] In 1913, the Lighthouse Administration, envisaging with some concern -
according to the French Case - the possibility of territorial changes, got
into touch with the Greek Government. The latter Government has alleged that
the Administration itself then informed the Greek representatives that the
contract of 1913 was without importance to Greece, since it could not form
the basis of any claim against that country, and that, for this reason, the
renewal contract of 1913 was not communicated to the said representatives.
It is, however, common ground that, in replying to a questionnaire of the
Financial Commission on Balkan Affairs, the Lighthouse Administration
indicated, at the same period, among its "firmans of concessions, contracts
and conventions", etc., the "renewal contract of April 1st/14th, 1913", and
that, in the same reply, the [p11] Lighthouse Administration specified among
"the chief questions which appear to call for settlement", the
"reinstatement of the Lighthouse Administration in the rights and
prerogatives which have been conferred on it in all the territories now
occupied by the Allied States....", etc.
[31] On the other hand, the Lighthouse Administration only mentioned among
the "pecuniary claims which the Company proposes to put forward" a claim "in
respect of the unexpired period of the concession, up to September 3rd,
1924".
[32] Be that as it may, the competent sub-committee of the Financial
Commission appointed in 1913 expressly included the Lighthouse Company, in
its report, among those "whose activities would in future extend to two or
more territories".
[33] In December 1914, the Greek Government informed the French Government
that it had "decided to take over the management and maintenance of the
lighthouses situated in the zone of the new Greek territories, with its own
staff, as from January 1st, 1915". This decision, which was based on
considerations of neutrality and national defence, was represented as being
in pursuance of an intention which the Greek Government had cherished for a
long time past, but the execution of which had been delayed by the
negotiations for a settlement with the Lighthouse Administration. The latter
agreed, in principle, to the operation of the lighthouses being taken over
by the Greek authorities in the Greek territories. In spite of this measure,
the lighthouse dues continued to be collected in Greek territory by the
officials of the Lighthouse Administration until 1929, when their authority
to collect them was withdrawn by the Greek Government.
[34] Towards the end of 1923, that is to say after the signature of the
Treaty of Lausanne, the Lighthouse Administration again entered into
conversations with the Greek Government for the settlement of certain
questions of detail, and also for the examination "of the situation which
had arisen, as a result of the Balkan wars and the World War, in certain
portions of Greek territory which fall within our Company's area".
[35] This proposal does not appear to have led to any result, with the
exception of an enquiry that was undertaken, on behalf of the Greek
Government, by M. Botassis, its Naval Attaché at Paris. However, in March
1924, the Greek Director of Transport (Ministry of National Economy)
incidentally mentioned to the Lighthouse Administration that, in his view,
the concession would expire on September 24th, 1924. This communication led
the Administration to bring the matter to the notice of the French
Government, and in the following month the question entered the phase of
diplomatic negotiations, the French Government supporting at Athens the
[p12] claims which the Lighthouse Administration founded on the renewal
contract of April 1st/14th, 1913, for the maintenance of the concession.
[36] The French Government seems to have gained the impression that, before
September 1924, these diplomatic negotiations had led to an agreement
recognizing in principle the contract of 1913, though further conversations
would have to be pursued for a settlement of accounts and for the
readaptation of the concessions. Be that as it may, negotiations were
resumed in 1925. It was then that the Greek Government for the first time
stated its legal point of view in writing in a note addressed by M. Rentis,
Greek Minister for Foreign Affairs, to the French Minister at Athens on
August 17th, 1925. The Greek note raised objections concerning the validity
of the contract as against Greece and based not only on points of law but
also upon matters of fact. In the words of the note, "the Greek Government
is obliged to maintain its view that, neither in fact nor in law, does the
contract for the renewal of the French company's concession imply any
obligation on the part of Greece, since, neither before nor after the
conclusion of Protocol XII of Lausanne, did it possess any validity as
regards that country". It based its opinion more especially on
considerations of Turkish constitutional law, from which it was deduced that
the contract of 1913 had not been duly entered into.
[37] Towards the end of 1926, as no agreement or settlement had been
reached, the French Government for the first time suggested the possibility
of "submitting the claims of the Light-house Administration" to the Court.
The conclusion of a Special Agreement with that object in view was delayed,
because recourse was first had to another procedure: an interchange of
arguments between jurists, designated by the two Parties, concerning "the
question of the validity of the Administration's concession". This procedure
having failed, the French Government, in April 1928, renewed its suggestion
that the dispute should be referred to the Court. The Greek Government
accepted this suggestion, and in June of that year it communicated a draft
Special Agreement to the French Government.
[38] As a result of circumstances which do not directly concern the Court,
the negotiations concerning the terms of the Special Agreement were somewhat
protracted, and an agreement between the two Governments was only reached in
April 1931. The Special Agreement was ratified two years later.
[39] The Special Agreement, in addition to Chapter I, which submits to the
Court the dispute as defined above, contains a second Chapter, providing for
subsequent proceedings which are to follow the delivery of judgment by the
Court and the [p13] object of which is the settlement of all pecuniary
claims of the Lighthouse Administration against the Greek Government or vice
versa, as also the determination of the sum payable for buying out the
concession, 'should the judgment declare that the contract of April
1st/14th, 1913, was duly entered into.
***
[40] As already stated, the question put to the Court by Article 1 of the
Special Agreement is whether the contract of April 1st/ 14th, 1913, "was
duly entered into and is accordingly operative as regards the Greek
Government in so far as concerns lighthouses situated in the territories
assigned to it after the Balkan wars or subsequently".
[41] In the first place, the precise import of this question must be
determined.
[42] In the course of the written and oral proceedings, the Parties have
debated two points which concern the interpretation of the question and, in
particular, the interpretation of the words "contract .... duly entered
into". Though agreed that the Court must examine the question whether the
contract of April 1st/14th, 1913, is valid according to Ottoman law, they
disagree in regard to whether the Court has also to consider what binding
effect, if any, the contract possesses as regards Greece in the territories
in which certain light-houses are situated. According to the French
contention, the question, as put by the Special Agreement, does not cover
this point. Furthermore, the Parties disagree in regard to whether an
argument based on the intention of the contracting Parties as regards the
scope of the contract is admissible under the terms of the question. The
French Government would exclude this argument also.
[43] The Court cannot regard the expression "duly entered into" as a
technical term, invariably possessing the same signification. Where the
context does not suffice to show the precise sense in which the Parties to
the dispute have employed these words in their Special Agreement, the Court,
in accordance with its practice, has to consult the documents preparatory to
the Special Agreement, in order to satisfy itself as to the true intention
of the Parties.
[44] The first two paragraphs of the preamble to the Special Agreement throw
some light on the import of the question submitted to the Court; these
paragraphs are as follows:
"Whereas a dispute has arisen between the French firm Collas & Michel, known
as the 'Administration générate des Phares de l'Empire ottoman', and the
Government of the Greek Republic concerning the validity as against Greece
of the [p14] contract concluded on April 1st/14th, 1913, extending the
existing concession;
Whereas the representations made by the Government of the French Republic
with a view to obtaining from the Government of the Greek Republic
recognition of the validity of the said contract extending the concession
have proved fruitless, and as in consequence of the refusal to give
satisfaction to the Lighthouse Administration encountered by the Government
of the French Republic, a dispute on this subject exists between the two
Governments".
[45] The first paragraph of the preamble says that the dispute between the
Lighthouse Administration and the Greek Government concerns the "validity of
the contract as against Greece". These terms are sufficiently wide to cover
the points above mentioned, and this is in accordance with the history of
the dispute - as the Court has' been able to satisfy itself from the
documents. The question is whether the definition of the dispute between the
two Governments, contained in the second paragraph of the preamble and in
the first Article of the Special Agreement, confines the dispute solely to
the question of the validity of the contract according to Ottoman law, as is
maintained by the French Government.
[46] The second paragraph of the preamble only mentions "the validity of the
said contract" and the fact that "a dispute on this subject exists between
the two Governments"; but the Court cannot draw any decisive conclusion from
the omission of the words "as against Greece". The term "validity" has, in
fact, often been used by the Parties in the present case, even in connection
with the effect of the contract as regards a succession State.
[47] For these reasons, the Court has reached the conclusion that the
precise import of the question put in Article 1 of the Special Agreement,
when read in conjunction with its context, is not clear.
[48] The contention which the French Government bases on Article 1 of the
Special Agreement is as follows: the expression "duly entered into" has been
- as is common ground between the Parties - taken from Article 1 of Protocol
XII, signed at Lausanne on the same day as the Treaty of Peace of July 24th,
1923, and bears the same meaning as in that Article, where it simply means
"valid according to Ottoman law". The Special Agreement, therefore, in
putting the question whether the contract was "duly entered into", is merely
submitting to the Court problems of Ottoman law. This, the French Government
contends, is still more evident because Article 1 of the Special Agreement
goes on to say: "and is accordingly operative as regards the Greek
Government"; [p15] hence the effectiveness of the contract as regards Greece
is to be considered simply as a consequence of its validity under Ottoman
law. This consequence follows, it is held, directly from Article 9 of
Protocol XII, which provides for the subrogation of the Balkan States as
regards concessions granted by the Ottoman Government.
[49] The Court, in this connection, has to consider Protocol XII. This
instrument comprises two sections, each dealing with a different question.
The first section (Art. 1-8) deals only with territories remaining Turkish,
so that no question as to State succession arises; the latter problem, on
the other hand, is dealt with in the second section (Art. 9-13), which
concerns the territories detached from Turkey. Accordingly, it follows that
the expression "duly entered into" in the first section cannot be meant to
cover enforceability against a succession State. The expression was, in
point of fact, construed in the competent committee of the Lausanne
Conference as meaning that "all formalities must have been fulfilled".
Without considering for the moment what the required formalities are, the
Court is content to observe that Article 1 of Protocol XII relates solely to
the fulfilment of the requirements of Ottoman law.
[50] As will be seen, it is not, however, certain that the Greek Government
has interpreted this expression in Article 1 of the Special Agreement in the
precise sense which the Court has just attributed to it. To suppose that it
did so, it would have to be assumed that that Government had abandoned its
previous standpoint, which was based, inter alia, on arguments of
international law.
[51] Moreover, the history of the Special Agreement does not support such an
assumption.
[52] The first draft of the Special Agreement was framed by the Greek
Government; it is therefore to be assumed that its previous standpoint in
regard to the subject of the dispute was expressed therein. What this
standpoint was appears from the following passages: in Article 1 of this
first draft, the dispute is described as concerning "the validity of the
contract as against Greece". This expression, which was subsequently
inserted in the first paragraph of the preamble of the Special Agreement as
finally adopted, does not refer - as has already been pointed out - only to
formalities of Turkish law, but also to the binding force of the contract as
against Greece. Article 2 of the Greek draft, which formulated the question
for submission to the Court, was differently worded: "The Court will be
called upon to say whether the contract .... was duly entered into and is
accordingly operative as regards Greece, in so far as concerns lighthouses
situated in the territories assigned to her after the Balkan wars or
subsequently." Nevertheless, [p16] it is impossible to infer therefrom that
the question thus stated covers a part only of the various problems under
discussion, for, according to Article 1, it is "the dispute", that is to say
the whole dispute, which is referred to the Court. The terms of Article 2
are not inconsistent with this interpretation. The later phrase ("in so far
as concerns lighthouses situated in territories assigned to her after the
Balkan wars or subsequently") was preceded by a comma (which again appears
in the submissions of the Greek Case) and has therefore to be read in
conjunction with the words "duly entered into". Accordingly, there was a
reference to the problem of international law whether Greece was obliged to
succeed Turkey in this contract.
[53] On the other hand, the French counterproposal placed in the preamble
the description of the subject of the dispute which had been given in
Article 1 of the Greek draft. It did not reproduce in its new Article 1 the
words : "in so far as concerns lighthouses", etc. This rearrangement might
indeed be taken as signifying an intention to modify the Court's terms of
reference, i.e. by submitting to it only a part of the dispute. It might
appear that the binding effect of the contract as regards Greece was
accepted as the logical consequence of the validity of a contract "duly
entered into". At the representations of the Greek Government, the
phraseology of Article 2 of the Greek draft was however reinserted (except
the comma) in Article 1 of the Special Agreement as finally adopted, and by
thus restoring the reference to the territories in question, the Parties
would appear once more to have had in mind international considerations. The
other changes made, principally in the preamble of the Special Agreement as
finally adopted, do not seem to have modified the subject of the dispute,
and are explained by anxiety to make it quite clear that the dispute is
between two States; this appears from the diplomatic correspondence.
[54] The history of the Special Agreement therefore does not exclude the
possibility that the words "duly entered into" in Article 1 of that
document, read in conjunction with the whole of the context, imply, besides
a condition regarding conformity with Ottoman law, a condition regarding
conformity with international law. Accordingly, the Court has decided not to
omit from consideration the objections of an international character opposed
by the Greek Government to the arguments of the French Government. As will
be seen hereafter, the inclusion of these objections within the Court's
purview does not modify the conclusions reached by the Court on the basis of
other considerations.
[55] In arriving at these conclusions, the Court has not lost sight of the
statement made by the Parties that they were [p17] in agreement that the
words "duly entered into", in Article 1 of the Special Agreement, were taken
from Article 1 of Protocol XII, and that these words have the same sense in
the Special Agreement as in the Protocol. The Court accepts the view that
the words were in fact borrowed" from Protocol XII. It may also be safely
assumed that, when the Special Agreement was concluded, each of the Parties
to that Agreement thought that the words "duly entered into" in Article 1
were being employed in the same sense in which they are used in Protocol
XII. But the Court considers that the two Parties do not attribute the same
meaning to these words in the Protocol. There is no doubt that the Greek
Government regarded the words in Protocol XII as wide enough to cover the
consideration based on international law on which that Government relied,
while the French Government regarded the words in Protocol XII as indicating
only the question whether the formalities required by Turkish law had been
complied with. Accordingly, it is clear that, even if each Party thought
that the words "duly entered into" in the Special Agreement were used in the
same sense as in Protocol XII, there was no agreement between them as to
what the words meant in the Special Agreement, because they were attributing
different meanings to the words in Protocol XII. For the same reason, the
Court cannot, after its finding that the words "duly entered into" in
Protocol XII bear a meaning other than that which the Greek Government
attributed to them, hold that the Greek Government has agreed that, in the
Special Agreement, the words bear a meaning which the Court holds to be
their correct interpretation in Protocol XII.
*
[56] With regard to the argument based by the Greek Government on what, in
its submission, was the intention of the Parties, according to the contract
of April 1st/14th, 1913, namely not to renew the concession in so far as
concerns lighthouses situated in territories occupied by the troops of the
Balkan Allies - the Court also considers it right to examine this argument.
For, according to the Greek Government, this point formed the subject of the
discussion between jurists which took place before the conclusion of the
Special Agreement, and this objection has in fact been considered in the
French Case. It is possible to find a reference to this question of the
intention of the Parties with regard to the scope of the contract in the
text of the Special Agreement itself, if the passage "in so far as concerns
lighthouses situated [p18] in the territories assigned to it after the
Balkan wars or subsequently" - which was inserted at the instance of the
Greek Government - be read in conjunction with the expression "contract ....
duly entered into". The Court cannot therefore give an affirmative answer to
the question put by the Special Agreement without satisfying itself that the
contract of April 1st/14th, 1913, covered, in the intention of the Parties,
lighthouses situated in the territories which have now become Greek.
***
[57] There are therefore three questions of substance with which the Court
must deal: it must determine the intention of the Parties as regards the
scope of the contract; it must consider whether this contract was "duly
entered into" according to Ottoman law, and whether it is enforceable
against Greece.
***
[58] In determining the scope of the contract of April 1st/14th, 1913, the
Court adopts the standpoint that the contract was one for the renewal of a
previous concession. The intention of the Parties to this contract was to
maintain for a further period of twenty-five years the relations existing
between them under the 1860 concession, with some modifications of detail
expressly laid down. Article 1 of the contract accordingly provides that
"the lighthouse concession still in force .... is granted as from 22
Aghostos, 1340/September 4th, 1924, and in accordance with the existing
general conditions".
[59] This statement is important in connection with the ascertainment of the
intention of the Parties as regards the scope of the 1913 contract. If the
old concession was renewed, it may be presumed, failing proof to the
contrary, that the scope of the 1913 contract remained identical with that
of the old concession.
[60] Accordingly, the onus of proving a contrary intention of the Parties,
i.e. an intention to limit the scope of the concession to lighthouses which
were to remain Turkish, rests on the Greek Government, and the Court does
not consider that that Government has furnished adequate proof of such an
intention.
[61] The Greek Government argues that it is impossible that the Parties
should have meant to include in their contract the occupied territories, the
cession of which had already been agreed to by the Sultan in his
negotiations with the mediating Powers as early as April 1st, 1913. It adds
that the Ottoman Government was aware that, under international law, it
could no longer grant a concession in the occupied [p19] territories.
Finally, it maintains, the attitude of the concessionnaires themselves who,
prior to 1924, had never adduced against Greece the renewal granted,
indicates that it was not their intention in 1913 to acquire rights in
respect of light-houses in occupied territory.
[62] These arguments are not convincing. In point of fact, the two Parties
to the contract had every interest in not reducing the previous scope of the
concession, so as to avoid prejudicing either the prospective receipts of
the concessionnaires or the aims of the Ottoman Government, which latter was
anxious to obtain as large an advance as possible against its share of the
receipts derived from the concession. Moreover, the negotiations had already
been begun before the Balkan war and, if the intention had been to restrict
the scope of the contract, as compared with the concession in force, the
fact would, no doubt, have been expressly stated. Finally, the fate of all
the occupied territories was not yet decided - for the mediating Powers were
to dispose of the islands -and the islands of Imbros, Tenedos and
Castellorizo were in fact restored to Turkey. If the Parties had really
meant to except the territories occupied on April 1st/14th, 1913, there
would have been, as regards the occupied territories subsequently restored
to Turkey, a curious uncertainty as to the scope of the renewed concession.
Even if there had been a generally accepted rule of international law
forbidding a sovereign State from taking measures in respect of occupied
territory, the Parties to the contract of 1913 might have had in view the
possibility that special provisions in the future peace treaties would
subsequently accord recognition to the concessions. As regards the attitude
of the concessionnaires, they - submitted their renewal contract to the
Financial Commission on Balkan Affairs which sat in Paris in 1913. That they
omitted, thereafter, to insist upon the rights pertaining to them as a
consequence of the renewal, is probably to be ascribed to the unfavourable
stipulations in the Treaty of Athens (Art. 5) relating to vested rights; it
is true that this stipulation was not of a definitive character, since it
was declared to be without prejudice to the future action of the Financial
Commission; the latter, however, did not continue its work.
[63] The scope of the contract of April 1st/14th, 1913, is not therefore
limited by reason of the fact that certain territories were occupied at that
date by the Balkan Allies.
*
[64] The Court has next examined the question whether "the contract" of
April 1st/14th, 1913, was "duly entered into" according to Ottoman law.
[p20]
[65] The Special Agreement raises the question of the validity of the
"contract" and not of the concession; for the concession is directly granted
in the above-mentioned Article 1 of the contract, and nowhere is reference
made to any special act performed by Turkish authorities - in addition to
the conclusion of the contract - in order to render the concession complete
in all respects. It is true that a contract granting a public utility
concession does not fall within the category of ordinary instruments of
private law, but it is not impossible to grant such concessions by way of
contract, and some States have adopted the system of doing so. This was the
case in Turkey, as appears from the law of June 10th/ 23rd, 1910, concerning
public utility concessions. The provisions of this law, and particularly
Article 5, leave no room for doubt that the grant of concessions took the
form of contracts made between the concessionnaires and the Government. In
principle, and with the exception of the cases enumerated in Article 1,
which will be dealt with later, the Government required a special
authorization given by legislative enactment. Nevertheless, the contract
alone - which was made where necessary in virtue of a law - constituted the
immediate title for all the private and public rights of the
concessionnaire. The constant references to "concessionary contracts" in
Protocol XII of Lausanne are therefore justified, and this expression is
also found in the preparatory work of the competent committee of the
Lausanne Conference. Accordingly, all that has to be done is to consider
whether the contract is valid, i.e. to ascertain whether all formalities
have been fulfilled - and, in particular, that legislative authorization, if
that was necessary, has been given.
[66] The contract of April 1st/14th, 1913, is signed by the Minister of
Finance on behalf and under the authority of the Ottoman Government.
[67] It has been suggested that the Court should content itself with
recording this circumstance and declare that the contract is therefore "duly
entered into", because the Ottoman Government had power to grant a renewal
of the lighthouse concession on its own authority.
[68] It is true that Ottoman law does not always require the participation
of the legislature in the granting of a concession ; Article 1 of the law of
June 10th/23rd, 1910, concerning public utility concessions, provides,
according to the complete official translation produced to the Court by the
Greek Government, that:
[Translation by the Registry.]
"The grant of concessions for works of public utility will be made directly
by the executive authority: (1) if they do not involve any kind of financial
obligation - present or future - on the part of the State and [p21] will not
necessitate selling or disposing of public movable or immovable property;
(2) if they do not concern a public service provided for in the budget; (3)
if they do not grant privileges other than those specified in this law; (4)
if they do not necessitate the amendment of legislation in force; (5) if the
granting of them depends on the legislation to be enacted for the
organization of municipalities in the vilayets and is not within the
jurisdiction of the local Government."
[69] In view of the Decree Law of April 1st/14th, 1913, which expressly
authorizes the making of the contract renewing the lighthouse concession,
the Court feels that it must deal first with this law and with the questions
raised regarding its validity. Only if the said Jaw were found to be invalid
would it be necessary to consider whether the terms of the concession are
such as to allow the Ottoman Government to dispense with the cooperation of
the legislative authority, as provided by the law of June 10th/23rd, 1910.
[70] The law of April 1st/14th, 1913, was not the result of parliamentary
legislation. It was issued by the Government, in virtue of the powers
conferred upon it by Article 36 of the Ottoman Constitution. It was what is
commonly called in Turkey a provisional law, or a decree law. Article 36 of
the Ottoman Constitution, as then in force, was, according to the (French)
translation which the Parties have agreed to accept, to the following
effect:
[Translation by the Registry.]
"In case of urgent necessity, if the General Assembly is not sitting and if
time does not allow of the Chamber being convened to pass a law for the
protection of the State against some danger, or for the preservation of
public safety, the Minister may adopt measures having the force of a
provisional law until Parliament is convened, provided always that such
measures are not contrary to the terms of the Constitution and that they are
sanctioned by an Imperial iradé and submitted to the General Assembly as
soon as the latter meets."
[71] It is common ground that the Ottoman General Assembly was not sitting
on April 1st/14th, 1913, that none of the provisions of the Decree Law of
that date was contrary to the Ottoman Constitution, and that the said Decree
Law received Imperial sanction. The dispute therefore concerns the question
whether the other conditions laid down in the above-quoted Article 36 were
complied with, that is to say, whether there was "urgent necessity", and
whether the measure was one "for the protection of the State against some
danger or for the preservation of public safety", and finally whether the
Decree Law was thereafter duly submitted to the Turkish Parliament.
[72] The Greek Government contends, in the first place, that an
authorization to renew a concession expiring in 1924 could not, [p22] in
1913, be a matter of urgency, or of importance for the public safety.
[73] In regard to this point, the Court observes as follows: The powers
conferred on the Ottoman Ministry by Article 36 of the Constitution are
genuine legislative powers. As Parliament was not always in session, and as
extraordinary sessions were difficult to convene, owing to the vast extent
of the Empire, the requirements of the State made it necessary that the
Government should be invested with supplementary legislative powers. It is
true that these extraordinary legislative powers were not unlimited ; a
decree law could not make changes in the Constitution, and two checks were
provided: first, sanction by the Sultan, and then submission to Parliament.
But any grant of legislative powers generally implies the grant of a
discretionary right to judge how far their exercise may be necessary or
urgent; and the granting of this right to the executive authority was
particularly necessary for the attainment of the object set forth in Article
36. It is a question of appreciating political considerations and conditions
of fact, a task which the Government, as the body possessing the requisite
knowledge of the political situation, is alone qualified to undertake. It
follows from the foregoing that the Ottoman Government, in the first
instance, and, subsequently, the Turkish Parliament, were alone qualified to
decide whether a given decree law should, or should not, be issued. The
Court is, therefore, not called upon to consider whether the Decree Law of
April 1st/14th, 1913, complied with the conditions rendering its issue
expedient according to the terms of the Ottoman Constitution.
[74] Even, however, if such an examination were to be undertaken, good
reasons might be given in favour of the view that the Decree Law was valid.
In Turkish constitutional practice, the field of extraordinary legislation
has been a very wide one, as is shown by some legal opinions which were
appended to the French Case and Counter-Case, and the contents of which have
not been contested by the Greek Government. It is to be noted, according to
these opinions, that even after the Reform of 1909, there were periods
during which three-quarters of the legislative acts promulgated were
decree-laws, though many of them related to matters which in other countries
are dealt with by parliamentary legislation. This practice appears to have
received general and tacit assent; Parliament never made it a ground of
remonstrance to the Government. Moreover, the renewal of the lighthouse
concession was essential in order to obtain the advance of £500,000 (T.);
and the Ottoman Treasury must have been in urgent need of this loan, having
regard to the position of the Empire at the end of the Balkan wars. [p23]
[75] The Decree Law of April 1st/14th, 1913, must, therefore, be accepted as
having been regularly issued, from the standpoint of Article 36 of the
Ottoman Constitution. Both Parties - as also the Court - interpret the
Constitution in the sense that a decree law which is regularly issued,
immediately acquires full legal force.
[76] However, the Greek Government has raised in this connection a second
objection to the validity of the renewal of the concession. It contends that
the validity of a decree law is subordinated to a condition by which it is
annulled if the decree law is not submitted to Parliament at the next
session or if Parliament should fail to ratify it. The Decree Law of April
1st/14th, 1913, was not ratified until the winter of 1914-1915 - a time when
a large part of what is now Greek territory had been formally ceded, and
when, in consequence, the Turkish Parliament no longer had any jurisdiction
over that territory. It had therefore become impossible, according to the
Greek Government, for Parliament to ratify a decree law affecting the ceded
territories, and that impossibility of ratifying amounted to the same thing
as non-ratification. Hence, the Greek Government argues, the Decree Law of
April 1st/14th, 1913, had ceased to possess the force of law.
[77] The Court cannot agree with these deductions. First, it finds that
there is no good reason for importing the idea of a nullifying condition
into the clauses of the Constitution governing decree-laws. No comparison is
possible between the promulgation of a decree law and the making in private
law of a contract which was subject to some condition. The decree law
presents a form of legislation, imposing legal rules which are immediately
valid and which only differ from ordinary laws in one respect, namely that
they are issued by the Government, and that their validity may subsequently
be terminated by a decision of Parliament. The existence of the latter
possibility gives decree-laws a provisional character, but it does not
affect the legal force they enjoy up till the time of their rejection by
Parliament. The Sultan sanctioned the Decree Law of April 1st/14th, 1913,
using a formula which is reproduced (in the French text) in a translation,
from a Turkish official source, submitted by the Greek Agent; this
translation has encountered no objection on the part of the French Agent.
[Translation by the Registry.]
"I have ordered that the present draft law, which shall be submitted on the
opening of Parliament for ratification by that body, be added to the laws of
the State."
[78] What is described here as ratification - though the expression is not
found in the translation of Article 36 of the Constitution [p24] furnished
to the Court - is not an act that is indispensable in order to elevate a law
from a supposedly lower to a higher plan of legal effectiveness. It is not a
formal condition upon the fulfilment of which the legislative value of the
decree law is dependent. The refusal of Parliament to ratify would alone be
relevant; when Parliament takes no action, the decree law remains intact and
continues in force, in the same way as any other ordinary law. It should be
noted, in this connection, that no period was laid down within which
Parliament had to give its decision. It cannot, therefore, be contended that
the alleged nullity of the ratification, owing to the loss of territorial
jurisdiction over the districts in question, can have deprived the decree
law of its status as a law. There was no refusal to ratify; there is
therefore no need to examine whether such a refusal would have had
retrospec¬tive effects, perhaps extending even to rights acquired under the
régime of the decree law. It also becomes unnecessary to examine whether the
cession of the provinces to Greece really incapacitated the Turkish
Parliament from ratifying a decree law which, as a fact, merely authorized
the Minister of Finance to conclude a contract disposing, amongst other
property, of lighthouses situated in those provinces. Ratification, in the
case in point, was rather a confirmation of the Government's action than the
imposition of legal provisions, applicable to the future, on the inhabitants
of the ceded territories. Moreover, according to Turkish law, the decree law
itself was not tainted with nullity because some of the territories covered
by the contract which it authorized were in enemy occupation. In
constitutional law nothing short of definite cession can produce legal
effects prejudicing the rights of the lawful sovereign. The question, which
arises in international law, whether the Succession State can be bound by a
contract or a law made during military occupation lies entirely outside this
subject.
[79] The Decree Law of April 1st/14th, 1913, was therefore valid in Turkish
law. Consequently the contract renewing the concession was also valid
between the Parties to it, notwithstanding the fact that the formality of
ratification of the decree law by the Turkish Parliament did not take place
until after the cession of some of the territories covered by the contract;
accordingly, no formality necessary to render the contract valid remained
unfulfilled.
*
[80] Nor does the Court arrive at a different conclusion as a result of its
examination of the question of international law whether the contract of
April 1st/14th, 1913, is "operative as regards the Greek Government". The
question whether, [p25] according to the general rules of international law,
the territorial sovereign is entitled, in occupied territory, to grant
concessions legally enforceable against the State which subsequently
acquires the territories it occupies, was debated at some length between the
Parties. Both of them adduced the terms of the Conventions of 1899 and 1907
concerning the laws and customs of war on land, besides precedents, and the
opinions of certain authors.
[81] The Court does not think it necessary to express its opinion on this
point. In the present case, it has before it a treaty clause, namely Article
9 of Protocol XII of Lausanne.
[82] That Article reads as follows:
"In territories detached from Turkey under the Treaty of Peace signed this
day, 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 and companies in which the capital of the nationals of
the said Powers is preponderant, who are beneficiaries under concessionary
contracts entered into before the 29th October, 1914, with the Ottoman
Government or any local Ottoman authority. The same provision will apply in
territories detached from Turkey after the Balkan wars so far as regards
concessionary contracts entered into with the Ottoman Government or any
Ottoman local authority before the coming into force of the treaty providing
for the transfer of the territory. This subrogation will have effect as from
the coming into force of the treaty by which the transfer of territory was
effected except as regards territories detached by the Treaty of Peace
signed this day, in respect of which the subrogation will have effect as
from the 30th October, 1918."
[83] This Article lays down that the Succession States are subrogated as
regards concessionary contracts entered into with the Ottoman Government
prior to October 29th, 1914, in so far as concerns the territories detached
from Turkey under the Treaty of Lausanne, and prior to the coming into force
of the respective treaties of peace, in so far as concerns territories
detached from Turkey after the Balkan wars. The Greek Government is not
therefore entitled to object to its subrogation as regards the contract of
April 1st/14th, 1913, on the ground that certain territories were occupied
by Greek troops at that date. Article 9 of Protocol XII naturally presumes
that the concessionary contracts in question are valid contracts. The only
objections to subrogation which it admits are those based on the date or the
validity of a concessionary contract.
[84] In regard to the question of date, the contract under consideration was
concluded on Арril 1st/14th, 1913, whereas the Treaty of Athens, which
assigned some of the territories in question to Greece, did not come into -
force until November 16th/29th, [p26] 1913. Therefore, in the present case,
the date of the concessionary contract cannot be a ground of objection to
the subrogation of the Greek Government.
[85] In regard to the validity of the concessionary contract, that question
has to be considered from the standpoint of Ottoman law; and from that
standpoint the Court has already recognized that the ratification of the
decree law empowering the Government to enter into the contract was not
necessary to render the latter valid. Neither does Article 9 of Protocol XII
require, as a condition for the subrogation of the Succession State, that
the decree law should have been approved by the Turkish Parliament before
the material date.
*
[86] The Greek Government has further pleaded three objections to the
consequences of applying Article 9 of Protocol XII. In the first place it
has adduced Article 10 of the aforesaid Protocol, which states as follows:
"The provisions of Section I of this Protocol, except Articles 7 and 8, will
be applied to the contracts referred to in Article 9. Article 3 will only
have effect in detached territories where the property or the services of
the concessionnaires were utilized by the State exercising authority in such
territory."
[87] Founding itself on this Article, the Greek Government draws attention
to Article 1 of the Protocol, which provides that:
"Concessionary contracts and subsequent agreements relating thereto, duly
entered into before the 29th October, 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 hand, are
maintained."
[88] In order to be regularly concluded, a concessionary contract must
therefore, in the Greek Government's contention, satisfy the requirements of
international law, and the contract of April 1st/14th, 1913, does not
satisfy them in that Government's view, because of the special circumstances
in which it was made.
[89] In this connection, the Court recalls that the two sections of Protocol
XII are concerned with two different problems, and that Article 1, having
regard to the ground covered by the first section of the Protocol, only
stipulates for validity under Ottoman law. As Article 9 of Protocol XII also
presumes that the contract is valid - which amounts to requiring that it
must have been duly entered into - the reference to Article 1 need not be
taken into account in interpreting Article 9. This solution is in accordance
with [p27] the terms of Article 10. For Article 10 lays down that "the
provisions of Section I .... will be applied to the contracts referred to in
Article 9". The "provisions" of Section I are to be applied to the contracts
referred to in Article 9, that is to say, to "contracts entered into", in so
far, of course, as such application is reasonable. The provisions of Article
1 cannot apply to Article 9 at all, because they relate to a different
situation, as has been shown in the present judgment.
[90] If, applying Article 1 of Protocol XII, it were possible to argue that
concessions granted by the sovereign during the occupation were not
operative as regards the Succession State, the provision in the second
sentence of Article 9, which fixes the day of the coming into force of the
treaty of peace as the material date, could never be applied in practice.
[91] Secondly, the Greek Government argues that the treatment of concessions
is a question which was definitely settled by the Treaty of Athens - Article
5 of which requires Greece to respect rights acquired before the occupation
- and that it could not therefore be reopened at Lausanne. In this
connection it must be pointed out, to begin with, that the second paragraph
of the same Article states that the terms of that Article in no way
prejudice any decisions which might be rendered by the Financial Commission
on Balkan Affairs; furthermore, it is always open to parties to amend
earlier treaties.
[92] Finally, the Greek Government has endeavoured, without success, to show
that there are adequate grounds for barring the application of the rule laid
down in Article 9 of Protocol XII - i.e. the rule under which the contract
of April 1st/14th, 1913, has been held to be enforceable against Greece.
True, Article 9 discriminates between the Principal Allied Powers and the
Balkan States in that the former, as successors to the territories detached
from Turkey by the Treaty of Lausanne, only recognize concessions granted
prior to the opening of hostilities by Turkey in the war of 1914-1918,
whereas the latter have to respect concessions granted up to the time when
the territories were formally ceded. This discrimination was, however,
intentionally made and it does not suffice, in itself, to support objections
to the Article. Nor can the Court accept the Greek Government's objection
that it signed Protocol XII in the belief that it did not in practice differ
from the terms of the Treaty of Athens. It has already been pointed out in
another connection that the Greek Government had been aware since 1913 of
the existence of the renewal contract. If the concessionnaires subsequently
observed a: certain reticence, this may be ascribed to the unfavourable
solution which the Treaty of Athens appeared to [p28] have adopted. No
express renunciation was ever made by the concessionnaires. The fact that
the terms of the Protocol would differ from those of the Treaty of Athens
might have been anticipated by the Greek Government, more especially since a
similar alteration had already been made three years earlier in the Treaty
of Sévres.
***
[93] Before giving an affirmative reply, for the foregoing reasons, to the
question referred to it, the Court would allude to one other point.
[94] In founding its decision on Article 9 of Protocol XII, the Court has
not overlooked the fact that the words used in that Article differ somewhat
from those used in the first Article of the Special Agreement: thus, the
Special Agreement speaks of "territories which were assigned" to Greece
"after the Balkan wars or subsequently"; whereas Article 9 refers to
"territories detached from Turkey" either "under the Treaty of Peace" (of
Lausanne) or "after the Balkan wars". The Court is, however, of opinion that
in both texts and in so far as concerns Greece the same territories are
meant, all the more so, since neither Party, when discussing Article 9, has
suggested that there is any substantial difference between the territories
referred to in these two texts.
[95] Moreover, the Court holds that the Special Agreement only requires it
to decide on a question of principle, and that it is not called upon to
specify which are the territories, detached from Turkey and assigned to
Greece after the Balkan wars or subsequently, where the lighthouses in
regard to which the contract of 1913 is operative are situated. It is
moreover all the more necessary to make this reservation because the Parties
have not argued before the Court the questions of fact and of law which
might be raised in that connection and which the Court has not been asked to
decide.
[96] FOR THESE REASONS,
The Court,
by ten votes against two,
decides
that the contract of April 1st/14th, 1913, between the French firm Collas &
Michel, known as the "Administration générale [p29] des Phares de I'Empire
ottoman", and the Ottoman Government, extending from September 4th, 1924, to
September 4th, 1949, concession contracts granted to the said firm, was duly
entered into and is accordingly operative as regards the Greek Government in
so far as concerns lighthouses situated in the territories assigned to it
after the Balkan wars or subsequently.
[97] This judgment has been drawn up in French in accordance with the terms
of Article 39, paragraph 1, second sentence, of the Statute of the Court,
the Parties having agreed in the Special Agreement that the case should be
conducted in French.
[98] Done at the Peace Palace, The Hague, this seventeenth day of March, one
thousand nine hundred and thirty-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
Governments of the French and Greek Republics respectively.
(Signed) Cecil J. B. Hurst,
President.
(Signed) Å. Hammarskjöld,
Registrar.
[99] MM. Anzilotti, Judge, and Séféériadès, Judge ad hoc, declare that they
are unable to concur in the judgment given by the Court and, availing
themselves of the right conferred upon them by Article 57 of the Statute,
have appended to the judgment the dissenting opinions which follow.
[100] Jonkheer Van Eysinga, Judge, while in complete agreement with the
operative clause of the judgment, declares that he is unable to accept
certain of the grounds on which it is based.
(Initialled) С J. В. Н.
(Initialled) A. H. [p30]
Separate Opinion of M. Anzilotti.
[Translation.]
[101] I find myself, to my great regret, unable to agree to the Court's
judgment. Availing myself of my right under Article 57 of the Statute, I
wish to subjoin to the judgment a short statement of the reasons for my
dissent.
[102] 1.-In the first place, I should observe that the question submitted to
the Court-a question which in my opinion is solely whether the contract of
April 1st/14th, 1913, was regularly entered into - must, in my opinion, be
resolved by the application of Article 1 of Protocol XII of Lausanne.
[103] My reason for adopting this point of view is not merely that the
Parties have stated that the expression "dûment intervenu" in Article 1 of
the Special Agreement bears the same meaning as in Article 1 of the
Protocol; but also, and more especially, because the question whether Greece
is subrogated to the rights and obligations of Turkey, as towards the
concessionary firm, is governed by Article 9 of the Protocol; for the
application of that Article involves - in accordance with Article 10 - the
application of Article 1 also, so that the subrogation prescribed in Article
9 can only take place in the case of a concessionary contract which has been
duly entered into (dûment intervenu), within the meaning of Article 1. I
shall return to that point later; for the moment it suffices to point out
that the concordant declarations of the two Parties in regard to Article 1
of the Special Agreement were made entirely from the standpoint of Protocol
XII, and that the question whether the contract of April 1st/14th, 1913,
was, or was not, duly entered into (dûment intervenu) can only be debated in
relation to Article 1 of the Protocol.
[104] Having made this clear, I can now go on to explain the nature of my
dissent from the Court's finding. The Court has held that a concessionary
contract was duly entered into (dûment intervenu) if it was validly made;
having satisfied itself that the contract of April 1st/14th, 1913, was
valid, the Court deduces that it was "dûment intervenu", and that it is
accordingly operative in regard to the Greek Government. My view, on the
contrary, is that "concessionary contracts duly entered into" (dûment
intervenus), within the meaning of Protocol XII, are concessionary contracts
in regard to which all the conditions requisite under Ottoman [p31] law for
the granting of the concession were fulfilled before the decisive date : the
question which the Court had to decide was whether this requirement had been
satisfied in the case under consideration.
[105] 2. - Taken by itself, the expression "contrat dûment intervenu" simply
suggests the idea of a "valid contract" or a contract "validly made"
(passé). No expression must, however, be considered in isolation, but in the
context to which it belongs; and it is solely in relation to that context
that those who seek to interpret it can determine its true meaning.
[106] The moment the question is looked at from that angle, one begins to
feel grave doubts as to whether the expression "concessionary contracts ....
duly entered into (dûment intervenus) before the....", in Article 1 of
Protocol XII, relates solely to the validity of the contract. No one would
have thought of suggesting that Turkey was obliged to maintain contracts
that were not valid; the word "dûment" would therefore be redundant, and as
a fact it does not appear in other clauses of the Protocol, which
nevertheless refer, in the same way as Article 1 , to contracts that have
been validly entered into. But it is a fundamental rule in interpreting
legal texts that one should not lightly admit that they contain superfluous
words: the right course, whenever possible, is to seek for an interpretation
which allows a reason and a meaning to every word in the text.
[107] 3.-This consideration might not, by itself, be sufficient ground for
concluding that the expression "concessionary contracts duly entered into"
(dûment intervenus) in Article 1 of the Protocol XII must bear a special
meaning, differing from that of contracts validly made.
[108] But the Protocol contains another article which, in my opinion,
strengthens this conclusion: I mean the passage in Article 10 making
reference to Article 1. Here I believe I am touching on the basic cause of
my disagreement with the Court. I wish, therefore, to make my point of view,
perfectly clear in regard to this point.
[109] Article 10 of the Protocol reads as follows:
"The provisions of Section I of this Protocol, except Articles 7 and 8, will
be applied to the contracts referred to in Article 9. Article 3 will only
have effect in detached territories where, the property or the services of
the concessionnaires were utilized by the State exercising authority in such
territory."
[110] The chief aim of Article 10 was no doubt to render applicable in cases
of subrogation the procedure laid down in [p32] Chapter I of the Protocol
for the readaptation of concessionary contracts which the new Ottoman
Government undertook to maintain. But that does not alter the fact that
Article 10 also makes reference to Article 1, and that it does so in such
clear and unmistakable terms that it is really very difficult to ignore
them; for not only is the clause couched in general terms, referring to "the
provisions of Section I of this Protocol", but it adds the words "except
Articles 7 and 8" ; and its second sentence particularizes the cases where
Article 3 will not have effect.
[111] But this reference is only intelligible if the words "concessionary
contracts .... duly entered into" (dûment intervenus) have in view a
particular condition with which the contracts must comply in order that the
consequences attaching to them under Article 1 may ensue. No one can indeed
doubt that, when Article 9 provides for the subrogation of succession States
to the rights and obligations of Turkey in regard to the beneficiaries
"under concessionary contracts entered into (passés) before", etc., these
words must be understood as meaning contracts that were validly made. It
follows that, if the expression "concessionary contracts .... duly entered
into (dûment intervenus) before", etc., in Article 1 had the same meaning
and import as the expression "concessionary contracts entered into (passés)
before...." in Article 9, the reference in Article 10 to Article 1 would be
devoid of all meaning.
[112] The position is entirely different if Article 1, in requiring that
concessionary contracts shall have been "duly entered into" (dûment
intervenus), has in view a condition peculiar to those contracts. In that
case the effect of the reference in Article 10 is to subordinate the
subrogation prescribed in Article 9 to the same condition as that to which
Article 1 subordinates Turkey's obligation to maintain concessionary
contracts entered into before October 29th, 1914.
[113] In these circumstances it appears to me inadmissible, in interpreting
this text, to be content with the view that the reference to Article 1 in
Article 10 of the Protocol is an oversight, and may be disregarded. The
first duty of those who construe this text is to consider whether it is not
possible and reasonable to interpret the expression "concessionary contracts
duly entered into (dûment intervenus) before", etc., in Article 1 of the
Protocol in such a manner that the reference made to this Article in Article
10 preserves its reason and its effect.
[114] It is only if it should be found impossible or unreasonable to
attribute to the expression "contracts duly entered into (dûment intervenus)
before", etc., in Article 1, a wider significance than that of the
expression "contracts entered into (passés) before", etc., in Article 9,
that one would be justified [p33] in declaring that the passage in Article
10 which refers to Article 1 is devoid of meaning, and may be disregarded.
That, in my opinion, is the correct method of interpreting legal texts.
[115] 4.-Accordingly, Protocol XII contains precise indications which lead
one to conclude that the "concessionary contracts duly entered into (dûment
intervenus) before October 29th, 1914", are concessionary contracts subject
to a particular condition, and that this condition is not, or is not
necessarily, the simple validity of the contract.
[116] On the other hand, there is nothing in Protocol XII to show what
condition the contracting Parties had in view when they spoke of
concessionary contracts duly entered into (dûment intervenus) before a
certain date.
[117] It is only natural to suppose that this condition must be connected
with the special nature of concessionary contracts; but it is equally
evident that that does not materially help us to interpret Article 1.
[118] In these circumstances, and as the text does not itself give the
information which would enable one to determine the true intention of the
Parties, I think it is necessary to have recourse to the preparatory work.
It is upon the basis of that preparatory work that we must decide, either
definitely to reject the idea that Article 1 of the Protocol had in view
anything else than the mere validity of the contracts, or to determine what
the contracting Parties intended when they stipulated the maintenance of
concessionary contracts "duly entered into (dûment intervenus) before
October 29th, 1914".
[119] 5.-The "Draft Protocol relating to concessions" which the Allies
submitted to the Turkish delegation, and which formed the basis of the
discussions at Lausanne, began with two articles worded as follows:
"I.-Concessionary contracts, and subsequent agreements relating thereto,
duly entered into before October 29th, 1914, between the Ottoman Government
or any local authority, of the one part, and nationals (including companies)
of the Allies, of the other part, are maintained if they are being applied,
or have begun to be applied.
II.-Contracts and agreements in regard to which all the formalities have not
yet been fulfilled are nevertheless considered valid, and are maintained if
they have, by mutual agreement, begun to be applied, or if they have formed
the subject of an arrangement between the Ottoman Government and an Allied
Government involving an advantage for Turkey." (Proceedings of the Lausanne
Conference, 2nd Series, Vol. I, p. 423 [French text].) [p34]
[120] At the meeting on July 7th, 1923, Ismet Pasha declared that Turkey
agreed that the treatment to be accorded to concessionnaires should be
settled at Lausanne, in cases where the negotiations between the said
concessionnaires and the Turkish Government had led to no result. He
continued:
"It is of course understood that the companies in question are those which
held concessionary contracts before the World War, and that these contracts
had been duly entered into. In the case of concessions in regard to which
all the formalities had not yet been fulfilled at the outbreak of the War,
the Turkish delegation is unable to agree to the Allied arguments claiming
their confirmation." (Op. cit., p. 411.)
[121] Ismet Pasha's declarations led General Pelle, one of the French
Government's delegates, to make a reply, the following extract from which
appears to be not without interest:
"General Pellé .... said he understood that the Turkish delegation was
willing to discuss the rights of companies which had not yet been able to
reach an agreement with the Angora Government, provided that such
discussions only extended to concessions which were duly entered into before
the declaration of war, and in respect of which all the prescribed
formalities had been fulfilled. These reservations of the Turkish delegation
were evidently directed to the second Article of the Draft."
[122] Having thus defined the sense in which he understood the declaration
of the first Turkish delegate, General Pellé went on to say that Article 2
of the Draft related to certain agreements entered into in 1914, which the
French Government regarded as valid, and which had been violated by the
Turkish Government who had granted to another group a concession which had
been previously given to a French group; for the French delegation, he said,
would press for the retention in the Protocol of a clause covering the
agreements of 1914 (op. cit., p. 415).
[123] It will be seen from the foregoing that the draft Protocol prepared by
the Allies and submitted to the Turkish delegation already drew a clear
distinction between concessionary contracts in respect of which all the
formalities had been fulfilled before the War, and other concessionary
contracts the formalities connected with which had not all been fulfilled on
October 29th, 1914. The former were "maintained" ; the latter were
"nevertheless considered as valid, and maintained".
[124] It will also be noted that the Turkish delegation was unwilling to
recognize concessionary contracts in respect of which all the formalities
had not been fulfilled at the outbreak of war, and that it was here that the
divergence [p35] commenced, for the Allies, though not placing the latter
category of contracts on the same footing as the former, insisted on the
insertion of a special clause in the Protocol covering certain agreements
which were precisely in that situation.
[125] An agreement was subsequently reached by a compromise which found
expression in Article 2 of the Protocol: that Article covers two of the
concessions which Turkey regarded as invalid because all the formalities in
respect of them had not been fulfilled when the war broke out, but which the
Allies nevertheless desired to preserve; it took the place of Article II in
the draft submitted by the Allies.
[126] It follows that Article 1 relates solely to concessionary contracts in
respect of which all the formalities required by the Ottoman law had been
fulfilled before October 29th, 1914; it is these contracts-and these
alone-which are described, in contrast to the contracts dealt with in
Article 2, as "concessionary contracts duly entered into (dûment intervenus)
before October 29th, 1914".
[127] In the draft Protocol submitted by the Allies, the distinction between
the two categories of contracts was clearly brought out by the difference in
the wording of Article I and Article II. Later, Article II ceased to be of a
general character, and only dealt with two particular concessions; on the
other hand, the word "dûment" which Ismet Pasha had used at the meeting on
July 7th was now inserted in Article I to show clearly that the
concessionary contracts which that Article referred to were contracts in
respect of which all the formalities required under Ottoman law had been
fulfilled before the decisive date. A study of the preparatory work places
it beyond doubt that this is the significance to be attached to the
expression "concessionary contracts duly entered into (dûment intervenus)
before October 29th, 1914", in Article 1 of Protocol XII: namely, that these
are concessionary contracts, in respect of which all the formalities
required under Ottoman law for the granting of the concession had been
fulfilled before that date.
[128] The special character of public utility concessions, the effect of
which is to transfer the exercise of governmental functions and powers to
individuals, amply explains why the authors of Protocol XII were not
satisfied with the mere existence of a valid contract, but also required
that such a contract should have been accompanied by all the necessary
formalities. It is of no importance for this purpose whether these
formalities preceded the contract, or accompanied it or were to be fulfilled
subsequently, if the formalities in question are those requisite for the
granting of the concession which forms the subject of the contract. [p36]
[129] 6.-If concessionary contracts "duly entered into" (dûment intervenus),
within the meaning of Article 1 of Protocol XII, are not only contracts
validly made (passes), but contracts in respect of which all the formalities
required under Ottoman law for the granting of the concession have been
fulfilled by the decisive date, the reference in Article 10 becomes
perfectly intelligible. The effect of this reference is that the subrogation
of the succession States to the rights and obligations of Turkey, as towards
the concessionnaires, in accordance with Article 9, only occurs in the case
of concessionary contracts in connection with which all the requisite
formalities had been fulfilled before the date laid down in this Article, in
each of the respective contingencies provided for in this Article.
[130] Moreover, this result is undeniably a just one. Since, under Article
1, Turkey secured the advantage that the Government of the Grand National
Assembly would not have to continue to support the burden of certain of the
concessions granted under the old régime, it would have been, to say the
least, singular if the same advantage had not been extended to the
succession States, who were forced to respect in their own territories
concessions granted by another State.
[131] Again, the very notion of subrogation, which underlies Article 9 and
according to which the succession State replaces Turkey in so far as
concerns the rights and obligations ensuing from the contract, would seem to
require that the concessions in question must be concessions in regard to
which nothing remained to be done at the date when subrogation was to take
place. In fact, only in that case could subrogation be effected without
modifying the respective positions of the two Parties : it is evident that
if there remained, any formalities to fulfil which would have enabled Turkey
to annul, void or modify the contract, the succession State, being unable to
fulfil these formalities in the stead of Turkey, would be more
disadvantageously situated; on the other hand, the concessionnaire would be
in a more favourable position.
[132] This is certainly the position in the case before us. Under Article 9,
Greece would have been subrogated as regards the rights and obligations of
Turkey at a time when the Turkish Parliament had not yet ratified the
provisional law or decree law of 1913: Greece would thus have been
definitely bound by a contract, which Turkey could still cancel or modify;
on the other hand, the concessionary company which, at that time, had only
obtained a contract, having a provisional character, from the Ottoman
Government, would have seen this contract become definitively binding upon
the Greek Government. The position would become still more complex and
paradoxical, if one considers what is a perfectly possible [p37]
contingency, namely, that the Turkish Parliament were subsequently to have
refused to ratify the provisional law, or proposed to modify the contract
(Art. 9 of the law of June 10th/ 23rd, 1910, concerning public utility
concessions).
[133] 7 .- The foregoing reasoning shows, in my opinion, that the Court,
which was asked to say whether the contract of April 1st/ 14th, 1913, was
"dûment intervenu", was not simply called upon to decide as to the validity
of that contract, but had also to decide whether the condition mentioned in
Article 1 of the Protocol was fulfilled, namely, whether all the formalities
required by Ottoman law for the prolongation-to which the contract
relates-of the concession, had been accomplished at the date of the coming
into force of the treaty whereby the territories were transferred to Greece.
[134] As regards the validity of the contract, I entirely concur in the
Court's opinion. I have no doubt that the contract was validly concluded on
the basis of the provisional law, or decree law; that no plea of
unconstitutionality can be raised before the Court respecting this
provisional law, or decree law; and, lastly, that the fact that the
ratification by Parliament took place at a date when the territories had
already been transferred to Greece in no way affects the validity of the
contract.
[135] All this, however, does not exhaust the question.
[136] It remains to ascertain whether the contract of April 1st/14th, 1913,
though undeniably valid, also fulfils the condition prescribed by Article 1
of the Protocol. The fact that the Turkish Parliament ratified the
provisional law or decree law after the transfer of the territories to
Greece, certainly does not affect the validity of the contract. On the other
hand, it prevents the contract from being regarded as a contract "duly
entered into" (dûment intervenu) within the meaning of Article 1 of the
Protocol, because one formality required by Ottoman law for the grant of the
concession to which the contract relates, namely, the approval or
ratification of Parliament, was not fulfilled at the date of the coming into
force of the treaty providing for the transfer of the territories.
[137] For, under Article 9 of the Ottoman law concerning public utility
concessions, "laws regarding concessions which are submitted to the Chamber
and to the Senate may, after consideration of the contracts and other
documents annexed thereto, be approved or rejected in toto, or returned
together with a statement of reasons, should there be grounds for
amendments". The powers of Parliament were not, therefore, limited to
reviewing the reasons of urgency or necessity alleged by the Government when
issuing a provisional law or a decree law; they also extended to the
contract itself, which the [p38] Parliament had to examine, with a view to
either approving the decree law or provisional law, or to rejecting it, or,
again, referring it back, with a statement of grounds, if the Parliament was
of opinion that it needed amendment.
[138] 8 .- The French Government's Agent argued that, according to Article 1
of the Ottoman law of June 10th/23rd, 1910, concerning public utility
concessions, the Ottoman Government did not require a law in order to make a
contract renewing the lighthouse concession: according to this Agent, a law
was only necessary to authorize the Minister of Finance to conclude the loan
contract.
[139] Counsel for the Greek Government disputed this view, and contended
that the lighthouse concession was one of those which the Ottoman Government
could not grant-and consequently could not extend-without the approval of
the legislature.
[140] This is a question of Ottoman public law on which I do not wish to
express an opinion, especially as I am not in possession of the necessary
information. Moreover, I do not believe that there is any need to decide it.
It is certain that the provisional law, or decree law, of April 1st/14th,
1913, authorized the Minister of Finance to conclude both the loan-contract
and the contract extending the lighthouse concession. Indeed, it may be
noted that the law in its first Article is described as a "law concerning
the prolongation of the light-house concession for twenty-five years"
(French Government's Case, Annex 4, p. 46). That being so, parliamentary
ratification became a necessity, even if it were assumed that, under Article
1 of the law of June 10th/23rd, 1910, it enabled the executive authority to
proceed by another method, and to dispense with the approval of the
legislature.
[141] 9. - The conclusion to which I have been led may appear to be very
rigorous, since it makes the obligation of Greece to respect the lighthouse
concession dependent upon the approval of the Turkish Parliament, an
approval which that body - so the Court was informed - was never known to
refuse. I do not deny that it is so, but I desire to add the following
remarks.
[142] This is manifestly a consideration founded rather upon equity than
upon law; for it is certain that, in law, the Turkish Parliament was
perfectly free to give, or to withhold, its approval. But, in the sphere of
equity, there are other considerations that come into play, and restrain the
effect of that which has been set forth above.
[143] The whole of Protocol XII is of an exceptional character; but nowhere
is that character so clearly revealed as in [p39] Article 9, which accords
separate treatment to the Powers -whom it only obliges to respect
concessions granted by Turkey before the War - and to the Balkan States -
whom it obliges to respect even concessions granted during the War and until
the coming into force of the Treaty of Peace. That being so, a strict
application of the conditions governing the subrogation referred to in
Article 9 is not only in harmony with the rules for the interpretation of
texts, but also in conformity with the requirements of equity.
[144] For the foregoing reasons, I am led to the conclusion that the
contract of April 1st/14th, 1913, between the French firm Collas & Michel
and the Ottoman Government, extending the lighthouse concession from
September 4th, 1924, to September 4th, 1949, was not "duly entered into"
(dûment intervenu), within the meaning of Article 1 of Protocol XII of
Lausanne, and is accordingly not operative in regard to the Greek
Government, within the meaning of Article 9 of the aforesaid Protocol, so
far as concerns lights situated in territories assigned to Greece after the
Balkan wars and prior to the Turkish Parliament's ratification of the
provisional law, or decree law, which had authorized the conclusion of the
contract.
(Signed) D. Anzilotti. [p40]
Separate Opinion of M. Séfériadés.
[Translation.]
[145] I am unable, in the case on which the Court has just given its
decision, to agree with the opinion of the majority.
[146] The chief reasons which lead me to dissent from it are the following:
A. - Facts.
[147] The judgment gives a very accurate statement of the facts, which I can
accept as it stands, though there are certain points in it, which I shall
mention as definitely supporting me in a conclusion opposed to that of the
Court.
[148] In the case before the Court, the interests directly in conflict are:
on the one hand, the pecuniary interests of the firm Collas & Michel,
supported by the French Government; and, on the other hand, the interests of
Greece, in the sphere of administration and national defence.
[149] The conflict arose as a result, more particularly, of the following
events:
[150] On April 14th, 1913 - by the Gregorian Calendar which I shall alone
make use of - a concessionary contract, known as the Lighthouse Contract,
was signed between the firm Collas & Michel and the Turkish Government, the
latter being authorized to take this step by a provisional law. This
contract was to expire on September 4th, 1949, and its object was to prolong
a concession first granted in 1860, and subsequently renewed, first in 1879
and again in 1894; the renewal of 1894 was to expire on September 4th, 1924.
Thus, the "new concession" of April 14th, 1913 - here I employ the actual
terms of the contract of that date - was signed more than eleven years
before the expiry of the concession running till 1924; this fact has been
ascribed to the urgent financial needs of the Porte.
[151] The concessionary contract of April 14th, 1913, which was signed by
the Ministers of the Ottoman Empire, of the one part, and by the firm Collas
& Michel of the other part, was not at that time communicated to the Greek
Government, nor was the latter aware of its existence. Moreover, the
provisional law of that date, which authorized the signature of the
concession, was not made public till after it had appeared in the Official
Gazette of the Ottoman Empire, dated May 27th, 1913. [p41]
[152] It should be added that neither the contract nor the above-mentioned
law could begin to be executed until after September 4th, 1924, the date on
which the concessionary contract signed in 1894 was to expire.
*
[153] However, long before the signature of the concessionary contract of
April 14th, 1913, both the administration and the usufruct of public
property in a part of the Ottoman Empire which, in normal circumstances,
would have been covered by this contract, had passed out of the hands of the
said Empire.
[154] From the very outset of the Balkan war (Oct. 1912) Turkish territories
were occupied by the Greek armies: Nay, more, on March 31st, 1913 - that is,
a fortnight before the signature of the concessionary contract of April
14th, 1913 - the Great Powers, including France, intimated in a collective
note to the Government of the Empire, which had already accepted their
mediation, that they "had agreed to propose to the belligerent States" that
"all the territories situated to the west of the Enos-Midia line should be
ceded by Turkey to the Allied States", and that "the settlement of the
question of the islands in the Aegean Sea" should be "left to the decision
of the Powers". It was on the basis of that agreement that the Treaty of
London was signed on May 30th, 1913.
[155] "No exchange of ratifications of this Treaty appears to have taken
place", so we read in de Martens (Recueil des Traités, 1915, 3rd Series,
Vol. 8, p. 16, note). Nevertheless, Greece and Turkey stipulated, in Article
15 of the Treaty of Athens, that they undertook "to uphold so far as the
same concern them, the provisions of the Treaty of London of May 30th,
1913”.
[156] The Treaty of Athens was signed on November 1st/14th, 1913; it was
ratified by a Turkish law of November 10th, 1913, in which the text of the
Treaty was reproduced in full; ratifications were exchanged at Athens on
November 29th of the same year. Article 5 of the said Treaty runs as
follows:
"Rights acquired up to the time of occupation of the ceded territories, as
well as judicial decisions and official deeds given by competent Ottoman
authorities, shall be respected and inviolate until legally disproved. -
This Article does not in any way prejudice the decisions which may be
rendered by the Financial Commission on Balkan Affairs sitting at Paris."
[157] Thirteen months after this Treaty - to be exact, on December 31st,
1914 - the Ottoman Parliament approved the provisional law relating to the
Lighthouse Contract of April 14th, [p42] 1913. This approval was given at a
time when Turkey and France were at war with one another; at a time when the
French laws had imposed penalties up to five years imprisonment on any
correspondence with enemy countries and when Turkey had even forbidden all
correspondence with enemy countries, whether directly, or by transit through
other States (Cabinet decision of Nov. 27th, 1914).
[158] Matters remained in this situation until the signature of Protocol XII
of the Treaty of Lausanne in 1923.
[159] That Protocol, which was signed by England, France, Italy, Roumania,
Greece and Turkey, contains among others three Articles, 1, 9 and 10, which
are invoked by the Parties to the suit, and which run as follows:
"Article 1. - Concessionary contracts and subsequent agreements relating
thereto, duly entered into before the 29th October, 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 hand, are maintained.
Article 9. - In territories detached from Turkey under the Treaty of Peace
signed this day, 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 and companies in which the capital of the nationals
of the said Powers is preponderant, who are beneficiaries under
concessionary contracts entered into before the 29th October, 1914, with the
Ottoman Government or any local Ottoman authority. The same provision will
apply in territories detached from Turkey after the Balkan wars so far as
regards concessionary contracts entered into with the Ottoman Government or
any Ottoman local authority before the coming into force of the treaty
providing for the transfer of the territory. This subrogation will have
effect as from the coming into force of the treaty by which the transfer of
territory was effected, except as regards territories detached by the Treaty
of Peace signed this day, in respect of which the subrogation will have
effect as from the 30th October, 1918.
Article 10. - The provisions of Section I of this Protocol, except Articles
7 and 8, will be applied to the contracts referred to in Article 9...."
[160] After these different diplomatic and legal happenings, there arose
between the firm Collas & Michel and the Greek Government "a dispute
concerning the validity as against Greece of the contract concluded between
the said firm and the former Ottoman Empire on April 14th, 1913, extending
the existing concession". [p43]
[161] The French Government, being convinced that its nationals were
justified in their claim, made representations to the Greek Government in
favour of the concessionnaires.
[162] In spite of these representations, the Greek Government adhered to its
opinion that, as the concessionary contract of April 1913 had not been duly
entered into (dûment interuenu) and was not valid, it was not enforceable
against Greece.
[163] It was to put an end to this conflict of opinions that the Special
Agreement was signed on June 15th, 1931, submitting the dispute to the
Permanent Court of International Justice.
B. - Questions of Law.
Questions put to the Court.
[164] The Special Agreement, in virtue of which the present dispute is
submitted to the Permanent Court of International Justice, is solely
designated to obtain the Court's decision on "a dispute .... concerning the
validity as against Greece of the contract concluded" on April 14th, 1913,
between the firm of Collas & Michel and the former Ottoman Empire "extending
the existing concession". In order to be in a position to decide, the Court
has to consider, more especially, whether the contract in question "was duly
entered into", since, if it were not found to be so, it could not be
regarded as operative against the Greek Government. However, in my view,
even supposing that the contract of April 1913 was duly entered into, there
is nothing to prevent the Court from holding that it could not produce
effects in regard to Greece.
[165] Thus, in interpreting the Special Agreement, I shall consider it as a
whole, taking the preamble in conjunction with Article 1.
[166] My method of interpreting the Special Agreement as a whole is in no
way unusual. It was definitely adopted by the Court in its Advisory Opinion
of August 12th, 1922, where it is stated, in so many words, that in order to
understand the true import of a treaty "it is obvious that the treaty must
be read as a whole, and that its meaning is not to be determined merely upon
particular phrases which, if detached from the context, may be interpreted
in more than one sense [FN1]".
---------------------------------------------------------------------------------------------------------------------
[FN1] See Court's Publications, Series В., Nos. 2 and 3, p. 22.
---------------------------------------------------------------------------------------------------------------------
[167] Moreover, this method of interpretation is one that is generally
accepted. MM. Huber and Anzilotti advocated it in the Wimbledon case. There
is no disagreement on this point among learned authorities. [p44]
[168] After indicating these points, which I feel it is imperative to
consider, and founding myself on the Special Agreement, I shall proceed to
ask myself the following questions:
I.
[169] In regard to the contract entered into on April 1st/14th, 1913,
between the French firm Collas & Michel and the Ottoman Government for the
extension of the previous concessionary contracts of the said firm from
September 4th, 1924, to September 4th, 1949: (a) Was that contract duly
entered into - that is to say did it fulfil the conditions of substance and
form requisite under Ottoman law to enable it to become definitive and as
such to be enforceable against Greece ? (b) Did it cover the lights situated
in the territories occupied by Greece at the time of signature? (c) Was it
not, in fact, disapproved in so far as concerns the lights in question?
[170] In my opinion the contract of April 1st/14th, 1913, was not duly
entered into, nor did it even cover the lights situated in the territories
occupied by Greece at the time of signature. Furthermore, even if it had
covered them it was definitely disapproved by Turkey; consequently, it can
neither be considered valid as regards Turkey - at any rate so far as
concerns lights which had passed out of her hands when the contract was
signed; nor a fortiori can it be operative as regards Greece.
[171] For:
a.
[172] The concessionary contract of April 1st/14th, 1913, had not at that
date become complete and definitive as between the contracting Parties; for
it could be disapproved by a fresh legislative decision, a possibility which
was contemplated by the Turkish law. Itself. Accordingly, it was not duly
entered into; the expression "contract .... duly entered into" could not, in
the present case, possess any other meaning than that of a complete and
definitive contract.
[173] On all these points I am wholly in agreement with the arguments in M.
Anzilotti's dissenting opinion.
[174] Indeed, to arrive at an interpretation of the words "duly entered
into" contrary to that given by M. Anzilotti, I should have to proceed in
the following way in direct opposition to my legal conscience:
(a) delete the categorical reference to Article 10 in Articles 1 and 9 of
the Protocol of Lausanne;
(b) consider the word "dûment", which appears both in the Protocol and the
Special Agreement, as entirely superfluous; [p45]
(c) refrain from any reference to the preparatory work of the Lausanne
Conference, although that work is alone capable of throwing a clear light on
the meaning of that expression;
(d) consider Article 2 of the aforesaid Protocol as superfluous;
(e) declare that the subrogation of the succession States as regards the
rights and obligations of Turkey means, on the one hand, subrogation as
regards the whole of the obligations, and, on the other hand, subrogation as
regards a part only of the rights possessed by that Power.
b and c.
[175] In reality, the 1913 contract and the provisional law of the same
date, assuming that they also covered lighthouses situated in the
territories already occupied by Greece a question which will shortly be
considered - had been definitively disapproved by Turkish law; this law was:
the law of November 10th, 1329 (1913), ratifying the Treaty of Athens of
November 1st/14th, 1913.
[176] For if we compare the provisional law of April 1913 with the law of
November of the same year ratifying the Treaty of Athens, we find that there
were two instruments - if it is assumed that the first of them also provided
for the operating of the lights in the territories already occupied by
Greece - containing provisions which are entirely and definitely
inconsistent:
(a) on the one hand, the provisional law granted to the firm Collas & Michel
a concession also covering the operation of lighthouses situated in the
territories occupied, and shortly afterwards annexed, by Greece;
(b) on the other hand, the Turkish law, which ratified the Treaty of Athens,
stated quite simply but clearly that Greece was to respect rights acquired
up to the time of her occupation of the territories ceded to her by that
Treaty; accordingly, all rights granted in these territories after the
occupation were excluded.
[177] This inconsistency cannot be disputed.
[178] Nevertheless, it cannot really give rise to any serious conflict. For
it is obvious that the provisional law of April 1st/ 14th, 1913, might have
been wholly or partly disapproved by the Turkish Parliament and that such
disapproval could not entitle the beneficiaries of this law to put forward
claims based on the theory of vested rights, since the possibility of
disapproval had always to be reckoned with, owing to the intrinsic nature of
provisional laws, and of the Turkish law of 1910 relating to concessions,
and also owing to the special circumstances in which the the provincial law
in question was enacted. [p46]
[179] Let us examine this question more closely.
[180] There are manifestly two different cases in which a provisional law or
a decree law might be disapproved:
(a) The case in which Parliament, having been requested by the Government to
approve a provisional law, expressly refuses to do so. This case appears
never to have occurred in Turkey, according to what is stated in the legal
opinion filed with the Court by the Agent of the French Republic.
(b) The case in which Parliament finds it superfluous «to approve
provisional laws already revoked by the executive authority or replaced by
other laws....". This case has arisen more than once in Turkey, according to
the said legal opinion, of which I have here quoted the actual words.
[181] Thus, it has repeatedly occurred in Turkey that provisional laws have
been either revoked by the Government or replaced by other laws.
[182] The legality of this disapproval has never been contested.
[183] That is exactly what happened in the case in point.
[184] The Turkish law ratifying the Treaty of Athens and therefore Article 5
of that Treaty declared that Greece was not bound to respect rights acquired
after her occupation of the territories ceded to her by the said Treaty;
thereby it most unmistakably replaced the provisional law of April 14th,
1913, at the very least as regards the territories ceded to Greece. The
Turkish law in question is that of November 10th, 1329. It is to be found in
the Collection of (Turkish) laws, Volume VII, page 45.
[185] Thus, at the end of November, 1913, the provisional Turkish law of
April 14th/May 27th of the same year - even assuming that it applied to the
lights in the territories already occupied by Greece at that period - had
been quite evidently—and in my view indisputably - revoked and replaced by
the Turkish law of November 10th, 1329.
[186] It follows that any subsequent approval of the provisional law of
April could only affect the concession in so far as concerned territories
not ceded to Greece by the Treaty of Athens.
[187] Moreover, the provisional law relating to the concession promulgated
on May 27th, 1913, provided for a concession running from September 4th,
1924, to September 4th, 1949, and not for an immediate concession for the
operating of the lights in the Ottoman Empire - for that concession was
already in existence and would go on running till 1924. Thus, the
concessionary contract and the provisional law now under consideration
relating thereto, the effects of which were to begin as from September 4th,
1924, were revoked and - replaced (I will continue to employ the actual
words of the Turkish legal opinion) by the law ratifying the Treaty of [p47]
November 1913, at any rate as regards the territories ceded to Greece, and
they must be considered as never having been in force, even for a day,
either in regard to Turkey or to Greece.
[188] It had not been in force in regard to Turkey, for when the latter
State revoked the provisional law of April/May 1913, it was simply availing
itself of powers conferred on it by its own Constitution.
[189] It had not been in force in regard to Greece, for - at any rate at
that period: (1) that State had not only never subscribed to an engagement
conferring any rights whatever on MM. Collas and Michel, but, on the
contrary, had under-taken, by the clear and precise terms of a treaty, to
respect only such rights as had been acquired up to the time of the
occupation, in the territories ceded to Greece; and (2) Greece could not
legally be subrogated as regards obligations which the Ottoman Empire did
not regard itself as having under-taken, for - in conformity with the terms
of the Turkish Constitution, as frequently applied in practice - the
legislature of that Empire had revoked and replaced the provisional law
relating to the concession in question in so far as concerns the territories
occupied by Greece, even if it is assumed that the contract of April 1913
extended to those territories.
[190] Furthermore, it is impossible for me to accept the view that the
contracting Parties themselves - that is to say the Turkish Government and
the firm Collas & Michel - intended, when they signed the instrument in
question, to render a concession which was only to begin running eleven
years later, applicable to the territories occupied by Greece at that time.
[191] In truth, if the Turkish Government had contemplated applying the
concession to those territories, it would never have signed Article 5 of the
Treaty of Athens, which definitely excludes these very territories from the
above-mentioned concession. Contracting parties are always assumed to be
acting honestly and in good faith. That is a legal principle, which is
recognized in private law and cannot be ignored in international law. An
honest man does not cede something which he has already ceded to another
party. There is no ground for supposing that the Turkish Government in 1913
did anything so irregular as to cede rights to Greece which it had itself
ceded to others, only a few months before.
[192] Consequently, the intention of the Turkish Government not to make the
concession of April/May 1913 apply to the territories occupied by Greece at
that time: - and which it well knew it was about to abandon permanently -
appears absolutely beyond question. [p48]
[193] Nor can one entertain a different opinion as to the intention of the
concessionnaires when the latter signed the contract of 1913. For if they
had believed that the concession extended also to the territories occupied
by Greece:
(a) they would not have failed to protest or even to set diplomatic
machinery in motion immediately upon the signature of the Treaty of Athens,
which contained Article5, and which had nothing secret about it, but which
deprived them of a part of the area of their concession;
(b) they would not, when they were requested in June/July 1913 by the
Financial Commission on Balkan Affairs «to supplement their replies with
explanatory notes containing the proposals and claims which they thought
themselves entitled to formulate" in their capacity as concessionnaires for
the operating of the lights in the Ottoman Empire, have failed to state
clearly that they had claims in respect of the period of the concession that
had still to run until September 3rd, 1949. But they said nothing of the
kind in their reply; they simply stated that "the Lighthouse Administration
proposed to put forward pecuniary claims in respect of the period of the
concession that had still to run until September 3rd, 1924....". (See
Minutes of the Meetings. Paris, Imprim. nation., pp. 57-62.) And a similar
statement will be found in the report of the Committee on Concessions and
Contracts (July 18th, 1913). There we read that, though the Lighthouse
Company gave information to the Committee concerning" the dates of its
successive contracts, including the renewal contract of April 1st/14th,
1913", when asked "what pecuniary claims it might propose to put forward",
it replied that "these claims would be as follows : for the period which the
concession has still to run until September 3rd, 1924. [FN1]". Thus, when
appearing before the Financial Commission in July 1913, almost on the morrow
of the concession of April, it never occurred to the Lighthouse Company to
claim, as acquired rights, any rights other than those pertaining to the
Company under the concession expiring in September 1924.
---------------------------------------------------------------------------------------------------------------------
[FN1] See ibid., p. 141
---------------------------------------------------------------------------------------------------------------------
[194] In view of the foregoing, the intention of the contracting Parties in
April 1913, when extending the concession from 1924 to 1949, not to include
therein the lights in the territories which had been occupied by Greece some
time before that date, and which it had already been decided that Greece was
to annex, appears clear, distinct and indisputable.
*
[195] To sum up my opinion on the questions which my conscience compels me
to answer, I am forced to reply that [p49] the contract of April 14th, 1913,
and the provisional law of that date, which form an indivisible whole,
(a) certainly did not cover lights in the territories which were then
occupied by Greece, and which were, soon after, definitely assigned to her,
since the intention of the Parties, as declared by each of them, definitely
excluded those territories;
(b) and, even if it were otherwise, the Ottoman Empire, by a subsequent
complete and definitive law - i.e. the law ratifying the Treaty of Athens -
replaced the provisional law of1913 ; and the latter law, being thus legally
disapproved, in so far as concerns the territories occupied by Greece in
April 1913, failed to comply with the conditions of substance and form
required by Ottoman law ; this cancelled provisional law could not therefore
be invoked against the Porte, nor, in consequence, against the succession
States of the Ottoman Empire.
II.
[196] Assuming that the contract of April 14th, 1913, between the French
firm Collas & Michel and the Ottoman Government was valid, as between the
contracting Parties, could it be binding upon Greece as regards lights in
territories which were under military occupation by that country, and which,
when the contract in issue was signed, it had been decided by the Great
Powers (and more especially by France), with the agreement of Turkey, that
Greece was to annex?
[197] There is a general principle of law which must not be lost sight of in
the case we are considering; it is summed up in five words: Nemo dat quod
поп habet.
[198] And so, in order to answer the question, we must ask ourselves whether
Turkey, in April 1913, was enjoying the usufruct and administration of the
property forming the subject of the contract of that date; or whether -
supposing that she no longer enjoyed them - she could have recovered them at
some later moment.
[199] It is abundantly clear, in my opinion, that if Turkey no longer
enjoyed the usufruct and administration, it was not possible for her to cede
them, however much she might have wished to do so, and however complete the
legal forms with which the contract of concession was surrounded.
[200] Nemo dat quod поп habet.
[201] That principle has served as the basis of several modern codes (e.g.
Art. 1599 of the French Civil Code; Art. 1459 of the Italian Civil Code;
Art. 1507 of the Netherlands [p50] Code), which lay down that the sale of
another's property is voidable.
[202] Following on these considerations, the question arises what is the
extent of the occupying State's powers in regard to administration and the
collection of taxes, in the case of territories occupied by the said State
in the course of a war?
[203] And, on the other hand, what are the powers of the government of an
occupied country over such territories, in regard to administration and the
collection of taxes?
[204] On this point there is no difference of opinion, so far as I am aware,
between legal writers.
[205] Without going into the general legal aspects of the question, I will
examine more particularly the granting of leases or concessions in respect
of public property belonging to the State whose territory is occupied.
[206] Naturally, these learned writers do not mention lighthouses; but they
have definitely decided the issue in the case of railways. I will give some
extracts, substituting the word "lighthouses" for "railways":
(Fauchille, Vol. II, p. 257.) "The occupying Power may have the operating of
the lights for the duration of the occupation. But he may not alienate the
lighthouses, for he is not yet the owner, and he will only become the owner
if the conquest is definitive."
[207] Consequently, and all the more certainly after the conquest had become
definitive, the occupying State - i.e. Greece, in this case - could alone
have had power to grant concessions.
[208] Of course, the occupying State, when leasing an object, that is to
say, when granting concessions, is bound to respect acquired rights, but
only those that were acquired before the occupation. For during the
occupation - it is self-evident - the occupying State alone enjoys the
usufruct of the public property in the territories which he occupies. All
learned-writers, or at least all that I have read, are agreed upon .this
general principle.
[209] I myself, in a note in the second volume of my treatise on
international law (p. 407), have distinctly laid down the doctrine, in
connection with two Greek decrees issued in 1898 concerning Thessaly, that
the government of a country whose territories are occupied cannot enact
administrative or financial laws concerning such territories except for the
period beginning with the end of the occupation.
[210] I have heard Article 55 of the Fourth Convention of The Hague of 1907
invoked in support of the contrary view. But that Article merely confirms
the doctrine that I have just been maintaining; for it says that the
occupying State is the administrator and usufructuary of the public property
of the enemy State. That simply means that it is not the latter-State that
administers the said property. [p51]
[211] But, if the State whose territories are occupied does not enjoy either
the usufruct or the administration of its public property situated in these
territories, during the occupation, the said State cannot assuredly be
deemed to have regained the administration of the property at a period when
it has lost even its sovereignty over the territories in which it is
situated.
[212] Consequently, if Turkey had lost the administration of the territories
occupied by Greece and the usufruct of the public property situated in the
said territories, long before the signature of the contract of 1913, and if
she subsequently lost the sovereignty over these territories, how could she
have been able, legally, to grant concessions in favour of third parties,
seeing that the term concession implies the cession of a right, and is a
procedure of an essentially administrative character ?
[213] In opposition to this legal conception of the powers conferred on the
occupying State by international law, the preparatory discussions of the
Hague Convention of 1899 have been invoked, and in particular the words of
the Belgian delegate, M. Beernaert, who admitted that "that is the way it
has always happened, and the way it will no doubt continue to happen until
mankind has renounced war", but went on to submit that, in his view, "they
should only adopt rules which, while accepting the fact, without
acknowledging the right of the victor, would imply an obligation for the
latter to moderate the exercise of the right". The Conference, it may be
added, shared the speaker's opinion, which was also set forth in M. Edouard
Rolin's report.
[214] However, if the preparatory discussions of the Hague Conference and
the terms of Article 55 of Convention V concerning the laws and customs of
war on land are read in conjunction, can it really be contended that, when
that Article lays down that the occupying State is the administrator and
usufructuary of the public property of the enemy State, that Article, at the
same time, DEPRIVES the occupying State of the above rights and declares
that they only pertain to the State that possesses the sovereignty ? In my
opinion, if such an interpretation were correct, Article 55 would have to be
considered as laying down rules which flatly contradict one another.
[215] Such a conclusion is inadmissible. When Article 55 of the Hague
Convention No. V admitted the right of the occupying Power to be the
administrator and usufructuary of the public property of the occupied State,
its object was - it is true - to set a limit to the powers of the occupying
State - powers which are often pushed very much further; but the Article
certainly did not set out to abolish those rights altogether, [p52] for then
all administration of occupied territories would become an impossibility. So
when it is contended that the Hague Convention does not allow any rights to
the occupying Power, and that all rights continue to be vested in the
occupied State, that - at any rate in my opinion - is assuredly an erroneous
view, both from the standpoints of fact and of international law.
[216] If it were otherwise, Article 55 of the Hague Convention would simply
have created an insoluble contradiction between the rights and powers of the
occupying State and those of the occupied State; and if, finally, in view of
this contradiction it were ruled that the rights of the occupied State ought
to prevail, the latter State would be entitled after, or perhaps even
during, the war to claim damages against the individuals to whom the
occupying State had leased public property; such a result would be entirely
inacceptable in the present state of international law.
[217] As a fact, the question whether the limited powers which the Hague
Convention allows the occupying State really amount to rights, and whether
those rights are entitled to prevail where they come in conflict with rights
which flow from sovereignty, and which continue to pertain to the occupied
State, in spite of the occupation, has been settled by an arbitral award
that decided a case of conflict between the powers of an occupying army and
the rights which flow from sovereignty over the occupied country.
[218] I refer to the celebrated award in the Casablanca case.
[219] Without dwelling in detail on the defence put forward in that case by
the eminent and lamented Andre Weiss, who submitted that "it is generally
allowed that the military occupation of a country by a foreign army has, as
its immediate result, a restriction of the occupied State's sovereignty", I
will pass on to the award itself, which - delicately and gracefully, but
none the less clearly - admitted not only the de facto power, but also the
rights of the occupying State, and ruled that where these rights clashed
with the legal sovereignty of the country, the former should prevail.
[220] The contrary view according to which, in law, a State whose
territories are in military occupation - or even, as in the case before us,
occupied animo domine - is entitled, on the eve of accepting the
dismemberment of its territories under occupation, to grant concessions
expiring half a century later, thus converting into cash all the future
revenues of these territories, would involve the inadmissible consequence
that the succession State would be unable, owing to lack of revenues, to
provide for the most elementary administrative requirements of the
territories acquired by it. [p53]
[221] Accordingly, in my view, and in accordance with the generally accepted
rules of international law which are confirmed by Article 55 of the Hague
Convention, the occupying State, which has the administration and usufruct
of public property in the occupied territory, alone has power to grant
concessions capable of application whilst the occupation continues.
Speculators and the financial needs of dismembered countries may suffer, but
that cannot be helped. The revenues of a territory must be devoted solely to
the needs of that territory itself. This is an axiom of legal morality that
international law cannot overlook.
[222] Of course, the ordinary rules of international law to which I have
alluded may be modified by international agreements to the contrary
concluded between two countries; but, in the absence of such agreements,
these rules cannot be regarded as set aside.
[223] Thus, in the case before us, there is nothing to justify the
assumption that they were set aside when the 1913 concessionary contract was
signed; on the contrary, having regard to these rules, the contracting
Parties could not for a moment have intended - which is acknowledged - that
the contract that they were signing should cover the property of others. And
these very same rules were applied: (1) when the Treaty of Athens (Art. 5) -
which was expressly ratified by a Turkish law - only imposed upon Greece the
obligation to respect rights acquired up to the time of the occupation, and
(2) when/ before the "Financial Commission on Balkan Affairs", which sat at
Paris in the same year, the Lighthouse Company raised no claim in respect of
the period subsequent to 1924, that is to say, no claim based on the 1913
contract.
***
[224] It is, in my opinion, quite certain that such was the moral and legal
position in 1913, in regard to the question before us.
[225] Was this situation modified by Protocol XII of Lausanne?
[226] In my view, certainly not.
[227] For, in my view, in order to render this instrument applicable to the
case before us, at all events the following conditions would be absolutely
indispensable:
(1) that there should have been, before the signature of that instrument, a
concessionary contract signed by the Porte and covering the territories
detached from Turkey either under the Treaty of Lausanne or after the Balkan
wars; [p54]
(2) that this contract should have been duly entered into (Art. 1 of the
Protocol of Lausanne);
(3) that this contract should have been valid.
[228] But, without undertaking a detailed examination of these conditions,
it seems to me clearly to follow from the foregoing :
[229] That the concessionary contract of April 14th, 1913, could not have
been and was not intended to cover the territories occupied by Greece at
that date, and that, consequently, there was no concessionary contract at
all in respect of these territories.
[230] That the Parties themselves definitely acknowledged that they had no
such intention, by signing the Treaty of Athens and by limiting their claims
to the period ending in 1924 when the question was put to them by the
Financial Commission in 1913.
[231] That this contract, even if it existed, was not duly entered into (see
M. Anzilotti's dissenting opinion), because, in any case, a definitive
Turkish law was necessary before it could be regarded as duly entered into.
[232] That the provisional Turkish law - or decree law - which accompanied
the contract, not only was not approved by the Turkish Parliament before the
Treaty of Athens, but, on the contrary, was definitely disapproved by the
Turkish law ratifying that Treaty.
[233] That, accordingly, the law ratifying this Treaty is to be regarded, in
accordance with the actual practice followed in Turkey which is confirmed by
the legal opinion produced, as having revoked the previous provisional law.
[234] Indeed, the terms of Article 5 of the Treaty of Athens, which are
reproduced in full in the Turkish law of ratification, are directly opposed
to the terms of the 1913 contract.
[235] In these circumstances, my legal training renders it quite impossible
for me even to admit the existence of a concessionary contract - much less
of a concessionary contract duly entered into or even merely valid - made
between the Turkish Government and the firm Collas & Michel, and which would
be capable, pursuant to the terms of Protocol XII of Lausanne, of creating
obligations incumbent either upon Turkey or - still less - upon Greece, in
respect of the territories occupied by the latter Power in April 1913. [p55]
***
[236] The Court, in answering the question put to it in the Special
Agreement, based its decision on Article 9 of Protocol XII ; obviously,
therefore, it could only have in view-in its judgment the extent of the
obligations imposed on Greece by that Article.
[237] That is to say, it could only affirm:
[238] That Greece, as Turkey's successor, should be regarded, in so far as
concerns concessions, as subrogated as regards the "rights and obligations"
already existing in favour of or resting upon Turkey and in respect of the
territories detached from the latter country and assigned to Greece under
the Treaty of Lausanne or after the Balkan wars.
[239] Thus, in my opinion, the Court should specifically except: (a)
territories which, though attributed to Greece after the Balkan wars or
subsequently, had already ceased effectively to form part of the territories
of the Ottoman Empire before the Balkan wars; (b) territories assigned to
Greece by Powers other than Turkey.
[240] The Court, however, holding that it is only asked by the Special
Agreement for a decision of principle, has not thought it necessary to
indicate by name the territories to which the terms of its judgment apply,
and expresses no opinion on this point.
[241] Accordingly, the question as to which these territories are remains
open. It is to be hoped that the Parties will reach agreement on this point.
[242] The undersigned, however, would have preferred that the Court should
have definitely settled the whole of this dispute, by inviting the Parties
to state their views. As this was not done, the answer given in the judgment
appears to the undersigned to be infra petita.
[243] Notwithstanding these considerations, and regarding the matter from
the standpoint of justice, the undersigned holds that the Court's
reservation is wholly justified and wholly adequate; he cannot therefore
fail to subscribe to it.
(Signed) Séfériadés. [p56]
А./В. 62. - Lighthouses Case (France - Greece)
Annex.
Documents Submitted To The Court.
I. - Documents Submitted On Behalf Of The French Government
A. - In the written proceedings:
1. Concession contract of August 8th/20th, 1860.
2. Additional Convention of June 30th/July 12th, 1879, to be annexed to the
Lighthouse Convention concluded on August 8th/20th, 1860.
3. Contract of October 13th/25th, 1894, concerning the extension of the
Lighthouse Concession.
4. Provisional law of April 1st/14th, 1913, concerning the extension by
twenty-five years of the duration of the Lighthouse Concession, and
concerning the advance of £500,000 (Т.).
5. Contract of April 1st/14th, 1913, concerning the extension of the
Light-house Concession.
6. Contract for an advance of £500,000 (T.) (April 2nd/15th, 1329/1913).
7. Letter from the Turkish Minister of Finance to MM. Collas and Michel
(April 2nd/15th, 1913).
8. Letter from the Turkish Minister of Finance to M. P. de Vaureal (April
2nd/15th, 1913).
9. Letter from the Greek Minister to M. Delcasse, French Minister for For.
Aff. (Dec. 14th, 1914).
10. Letter from the Lighthouse Administration to the Greek Minister in Paris
(Dec. 22nd, 1914).
11. Law of December 22nd, 1914/January 4th, 1915, concerning the extension
by twenty-five years of the duration of the Lighthouse Concession, and
concerning the advance of £500,000 (Т.).
12. Extracts from the Peace Treaty of Lausanne (July 24th, 1923).
13. Protocol XII relating to certain concessions granted in the Ottoman
Empire, attached to the Treaty of Lausanne of July 24th, 1923.
14. Letter from the Lighthouse Administration to the Greek Minister in Paris
(Jan. 16th, 1924).
15. Letter from the Greek Minister in Paris to the Lighthouse Administration
(Jan. 19th, 1924).
16. Letter from the Greek Director of Transport (Ministry of National
Economy) to the General Agency of Lighthouses at Salonica (March 6th, 1924).
17. Letter from the Lighthouse Administration to the Greek Minister in Paris
(March 24th, 1924).
18. Letter from the Greek Minister in Paris to the Lighthouse Administration
(March 30th, 1924).
19. Note from the Greek Minister for For. Aff. to the French Minister in
Athens (March 31st, 1924).
20. Letter from the French Prime Minister and Minister for For. Aff. To the
French Minister in Athens (April 4th, 1924).
21. Note from the French Chargé d'aff.. in Athens to the Greek Ministry for
For. Aff. (April 30th, 1924). [p57]
22. Despatch from M. de Marcilly, French Minister in Athens, to M. Poincaré,
French Prime Minister and Minister for For. Aff. (May 2nd, 1924).
23. Letter from the Lighthouse Administration to the French Prime Minister
and Minister for For. Aff. (May 20th, 1924).
24. Despatch from M. de Marcilly, French Minister in Athens, to M. Lefebvre
du Prey, French Minister for For. Aff. (June 12th, 1924).
25. Note verbale from the Greek Minister for For. Aff. to the French
Legation in Athens (June 21st, 1924).
26. Despatch from M. de Marcilly, French Minister in Athens, to M. Herriot,
French Prime Minister and Minister for For. Aff. (July 29th, 1924).
27. Letter from Commander Botassis, Naval Attache to the Greek Legation in
Paris, to the General Lighthouse Administration (Aug. 5th, 1924).
28. Letter from the General Lighthouse Administration to Commander Botassis
(August 20th, 1924).
29. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (Sept. 7th, 1924).
30. Despatch from M. de Marcilly, French Minister in Athens, to M. Herriot,
French Prime Minister and Minister for For. Aff. (Nov. 13th, 1924).
31. Letter from the General Lighthouse Administration to M. Politis, Greek
Minister in Paris (May 19th, 1925).
32. Letter from M. Politis, Greek Minister in Paris, to the General
Light¬house Administration (May 25th, 1925).
33. Letter from the Director of Mercantile Marine in the Greek Ministry of
National Economy to M. P. Anger, Secretary-General of the Lighthouse
Administration of the former Ottoman Empire (June 16th, 1925).
34. Note from the French Legation in Athens to, the Greek Minister for For.
Aff. (July 30th, 1925).
35. Note from M. Rentis, Greek Minister for For. Aff., to the French
Minister in Athens (Aug. 17th, 1925).
36. Note from the French Legation in Athens to the Greek Minister for For.
Aff. (Aug. 18th, 1925).
37. Letter from M. de Chambrun, French Minister in Athens, to M. Rentis,
Greek Minister for For. Afi. (Oct. 3rd, 1925).
38. Letter from M. Rentis, Greek Minister for For. Aff., to M. de Chambrun,
French Minister in Athens (Oct. 12th, 1925).
39. Note from the French Legation in Athens to the Greek Minister for For.
Aff. (Oct. 20th, 1925).
40. Letter from M. de Chambrun, French Minister in Athens, to Admiral Hadji
Kyriacos, Greek Minister for For. Aff. (Oct. 30th, 1925).
41. Letter from M. de Chambrun, French Minister in Athens, to M.
Michalacopoulo, Greek Minister for For. Aff. (Dec. 13th, 1926).
42. Letter from M. Clément-Simon, French Minister in Athens, to M.
Michalacopoulo, Greek Minister for For. Aff. (May 23rd, 1927).
43. Letter from M. Zaimis, Greek Minister for For. Aff., to M.
Clément-Simon, French Minister in Athens (June 16th, 1927).
44. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (March 26th, 1928).
45. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (April 30th, 1928).
46. Note verbale from the Greek Ministry for For. Aff. to the French
Minister in Athens (June 13th, 1928). [p58]
47. Note from the French Legation in Athens to the Greek Minister for For.
Aff. (Oct. 29th, 1928).
48. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (Dec. 5th, 1928).
49. Note verbale from the Greek Minister for For. Aff. to the French
Minister in Athens (Jan. 2nd, 1929).
50. Letter from M. Clement-Simon, French Minister in Athens, to M.
Carapanos, Greek Minister for For. Aff. (Jan. 30th, 1929).
51. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (April 9th, 1929).
52. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (April 30th, 1929).
53. Note verbale from the Greek Minister for For. Aff. to the French.
Minister in Athens (May 10th, 1929).
54. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (Oct. 24th, 1929).
55. Note verbale from the Greek Minister for For. Aff. to the French
Minister in Athens (Dec. 2nd, 1929).
56. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (March 3rd, 1930).
57. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (March 7th, 1930).
58. Note from the French Minister iii Athens to the Greek Minister for For.
Aff. (March 14th, 1930).
59. Note verbale from the Greek Minister for For. Aff. to the French
Minister in Athens (March 31st, 1930).
60. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (Feb. 10th, 1931).
61. Note verbale from the Greek Minister for For. Aff. to the French
Minister in Athens (March 6th, 1931).
62. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (April 9th, 1931).
63. Note verbale from the Greek Minister for For. Aff. to the French
Minister in Athens (April 16th, 1931).
64. Legal opinion by Maitre Manasse, Advocate at Constantinople (April 23rd,
1928).
65. Observations on the Greek Government's Case, by Maître Manasse, Advocate
at Constantinople.
B. - During the oral proceedings:
1. Copy of an agreement between the Turkish Government and the General
Administration of Turkish Lighthouses (July nth, 1923).
2. Copy of an agreement (additional articles to the contract of April 14th,
1913) between the same Parties as above (July 11th, 1923).
3. Copy of an agreement between the Governor of the Italian Islands in the
Aegean Sea and the General Administration of Lighthouses on the Italian
Islands in the Aegean Sea (Oct. 1st, 1927) (with letters exchanged).
4. Copy of a convention for the readaptation of concessionary acts of the
Palestine Lighthouse Administration (Dec. 6th, 1930) (with an appendix).
[p59]
5. Convention for the readaptation of the concessionary acts of the
Lighthouse Administration of the Syrian Coast, Great Lebanon, and the
Alaouites (in French and in Turkish) (printed pamphlet).
6. Letter from the Greek Minister in Paris to the Lighthouse Administration
(Sept. 27th, 1913).
7. Letter from the Ottoman Minister of Marine to the Directorate of
Lighthouses at Constantinople (May 9th, 1914).
8. Arbitral award delivered by M. Eug. Borel concerning the apportionment of
the annuities of the Ottoman Public Debt (Geneva, April 18th, 1925)
9. Copy of Annex A to the Treaty signed at Constantinople on September 4th,
1860, between the Ottoman Government and the Lighthouse Administration.
10. Photographic reproduction of the instrument renewing the Lighthouse
Concession (Oct. 13th/25th, 1894).
11. Minutes of the Financial Commission on Balkan Affairs (Paris, Impr.
nation., 1913).
II. - Documents Filed on Behalf of the Greek Government.
A. - In the written proceedings:
1. First concession (Aug. 20th, 1860/Sept. 4th, 1884). Treaty between the
Ottoman Government and the Lighthouse Administration of the Ottoman Empire.
2. Second concession. Contract prolonging the concession (Sept. 4th,
1884/Sept. 4th, 1899).
3. Third concession (Sept. 4th, 1899/Sept. 4th, 1924), and supplementary
agreement.
4. Fourth concession (Sept. 4th, 1924/Sept. 4th, 1949). Contract concerning.
the prolongation of the Lighthouse Concession, and supplementary agreement.
5. Letter concerning the allocation of the Aegean islands to Greece, from
the Ministers of the six Great Powers in Athens to the Greek Minister for
For. Aff. (Jan. 31st/Feb. 13th, 1914).
6. Letter from the Greek Minister for For. Aff. to the Ministers of the six
Great Powers in Athens, with two annexes (Feb. 8th/21st, 1914).
7. Note from the French Minister in Athens to the Greek Minister for For.
Aff. (April 11th/24th, 1914).
8. Letter from the Greek Minister in Paris to the Greek Minister for For.
Aff. in Athens (May 29th/June 11th, 1913).
9. Greek note concerning the conversations with the French Lighthouse
Company (Paris, Jan. 15th/28th, 1914).
10. Extracts from the Yellow Book of the French Ministry for For. Aff.,
concerning the regions annexed to Greece (Diplomatic Documents - Balkan
Affairs; Paris, Impr. nation., 1922):
(a) Note from the French Prime Minister to the French Ambassadors in St.
Petersburg, London, Berlin, Vienna and Rome (Paris, Nov. 5th, 1912) (Vol. I,
No. 233, p. 139).
(b) Note from the French Chargé d'affaires in London to the French Prime
Minister (London, Dec. 23rd, 1912) (Vol. II, No. 35, p. 26).
(c) Letter from the French Ambassador in Constantinople to the French Prime
Minister (Pera, Jan. 17th, 1913), and joint note to the Sublime-Porte (Vol.
II, No. 67, p. 45). [p60]
(d) Note in reply from the Sublime-Porte (Constantinople, Jan. 30th, 1913)
(Vol. II, No. 92, p. 61).
(e) Note from the French Ambassador in London to the French Minister for
For. Aff. (Feb. 27th, 1913) (Vol. II, No. 137, p. 90).
(f) Memorandum presented by the Turkish Embassy (Vol. II, No. 138, p. 191).
(g) Note from the French Ambassador in Constantinople to the French Minister
for For. Aff. (March 16th, 1913) (Vol. II, No. 170, p. 110).
(h) Note from the French Ambassador in Constantinople to the French Minister
for For. Aff. (March 31st, 1913) (Vol. II, No. 194, p. 125).
(i) Note from the French Minister for For. Afi. to the French Ambassadors in
London, Berlin, Vienna, St. Petersburg, Rome and Constantinople, and to the
French Ministers in Sofia, Belgrade, Athens, Cetinje and Bucharest (Paris,
April 1st, 1912) (Vol. II, No. 195, p. 126).
11. Telegram from M. Roussos, Greek Minister for For. Aff., to the Greek
Legation in Paris (Athens, Sept. 27th, 1924).
12. List of lighthouses found by Greece in the territories acquired by her
after the Balkan Wars.
13. List of lighthouses erected by Greece on the coasts of the territories
acquired by her after the Balkan Wars.
14. Treaty of London (May I7th/3oth, 1913), Art. 1 to 5.
15. Treaty of Athens (Nov. 1st/14th, 1913), Art. 15 and 16.
16. Extract from the Acts of the Conference of Lausanne (2nd Series, Vol. I,
p. 182). Second Committee, P.-V. No. 1, Meeting of April 24th, 1923.
B. - During the oral proceedings:
1. Copy of the provisional law published in the paper Takvimi Vakayi of 19
cemazevilevvel 1331 and May 1329, with a certified correct French
translation.
2. Copy of the article published on the first page of the paper Takvimi
Vakayi on January 26th, 1330, with a certified correct French translation.
3. Arbitral awards made by M. Unden in the case of the Rhodope forests
(Upsala, 1932 and 1933).
4. Report by the Naval Attache to the Greek Legation in Paris (July 9th,
1924) (French certified translation).
5. Extracts from the report of the Committee for concessions and contracts
of the Financial Commission for Balkan Affairs (June 4th/July 18th, 1913)
(Paris, Impr. nation.).
6. Copy of the Ottoman law governing public utility concessions (June 10th,
1326/1910 - French translation).
III. - Documents Placed at the Court's Disposal by the Registrar.
1. Charts of the eastern Mediterranean.
2. Collection of the Acts of the Conference of Lausanne (1923) (1st Series,
Vol. Ill; 2nd Series, Vol. I).
|
|