General List No. 59

Judgment No. 22

17 March 1934

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Thirty-First (Ordinary) Session

 

Lighthouses Case between France and Greece

 

France v. Greece

Judgment

 
BEFORE: President: Sir Cecil Hurst
Vice-President: Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski,  Fromageot, Anzilotti, Adatci, Schücking, Negulesco, Jhr. Van Eysinga, Wang
Judge(s) ad hoc: Séfériadés
     
Represented By: France: M. J. Basdevant, Legal Adviser to the Ministry for Foreign Affairs
Greece: M. T. Triantafyllakos, Greek Chargé d'affaires at The Hague, and subsequently by M. G. С Lagoudakis, Envoy Extraordinary and Minister Plenipotentiary of Greece at The Hague
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1934.03.17_lighthouses.htm
  
Citation: Lighthouses Case between France and Greece (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62 (Mar. 17)
Publication: Publications of the Permanent Court of International JusticeSeries A./B. No. 62; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1934.
  
 

  

[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]".

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[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.
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[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].

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[FN1] See list in the Annex.
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[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]".

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[FN1] See Court's Publications, Series В., Nos. 2 and 3, p. 22.
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[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.

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[FN1] See ibid., p. 141
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[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).



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