General List No. 70

Judgment No. 22

 8 October 1937

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1937

 

Lighthouses in Crete and Samos

 

France v. Greece

Judgment

 
BEFORE: President: Guerrero
Vice-President: Sir Cecil Hurst
Judges: Count Rostworowski, Fromageot, De Bustamante, Altamira, Urrutia, Negulesco, Jhr. Van Eysinga, Cheng, Hudson, De Visscher,
Judge(s) ad hoc: Séfériadès
     
Represented By: France: M. J. Basdevant, as Agent
Greece: M. N. Politis, as Agent, and M. D. Drossos, as Assistant Agent
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1937.10.08_lighthouses.htm
  
Citation: Lighthouses in Crete and Samos (Fr. v. Greece), 1937 P.C.I.J. (ser. A/B) No. 62 (Oct. 8)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 62; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1937.
  
 

  

[p95] The Court,
composed as above,
delivers the following judgment:

[1] By a Special Agreement signed at Paris on August 28th, 1936, the French and Greek Governments agreed to submit to the Court the question of the applicability, as regards lighthouses situated in the territories of Crete, including the adjacent islets, and of Samos, of the principle laid down in the judgment rendered by the Court on March 17th, 1934, this question being regarded on both sides as accessory to the principal question already decided by the Court.

[2] The two Governments, having regard to the nature of the question submitted to the Court, recognized in the Special Agreement that that instrument should take effect as from the date of its signature and might be transmitted to the Court by either Party. The Special Agreement was filed with the Registry of the Court on October 27th, 1936, by the French Minister at The Hague.

[3] The Parties request the Court, taking into account the period at which the territories in question were detached from the Ottoman Empire, to give its decision on the following question:

"Whether the contract concluded on April 1st/14th, 1913, between the French firm Collas & Michel, known as the 'Administration générate 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 of Crete, including the adjacent islets, and of Samos, which were assigned to that Government after the Balkan wars."

[4] The subject of the dispute has thus been indicated in accordance with Article 40 of the Statute.

[5] On October 27th, 1936, the filing of the Special Agreement was notified to the Greek Government in accordance with Article 33, paragraph 2, of the Rules; on October 31st, the [p96] communications provided for in Article 40 of the Statute and Article 34 of the Rules were duly despatched.

[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 and nominated Professor S. P. Seferiades to sit in this case.

[7] The Special Agreement states that, in regard to all points not provided for therein, the Court "is requested to follow the Special Agreement of July 15th, 1931" (submitting to the Court the Lighthouses case between France and Greece, which formed the subject of the above-mentioned Judgment of March 17th, 1934), "it being agreed that the time-limits for the filing of the Memorials and Counter-Memorials mentioned in Article 3 of this Special Agreement shall only begin to run as from October 15th, 1936".

[8] In the said Article 3 of the Special Agreement of July 15th, 1931, 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) of 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".

[9] In the present case as in the previous one, the Parties did not propose the fixing of a time-limit for the presentation of a Reply by each of them. It is to be observed in this connection that, in an Order made on July 28th, 1933, and referred to in the Judgment of March 17th, 1934, 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.

[10] By an Order made on January 13th, 1937, the President of the Court, as the Court was not sitting, fixed December 17th, 1936, as the date from which the time-limits which were fixed in accordance with the proposals of the Parties should begin to run.

[11] The Memorials and Counter-Memorials were duly filed within the time-limits thus fixed. The Counter-Memorials having been filed on June 10th, 1937, the case became ready for hearing on that date.

[12] In its Memorial the French Government prays the Court :

"To adjudge and declare that the contract concluded on April ist/i4th, 1913, between the French firm Collas & Michel, known as the 'Administration générate das Phares de I'Empire [p97] 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 of Crete (including the adjacent islets) and of Samos, which were assigned to that Government after the Balkan wars."

[13] The Greek Government, for its part, in its Memorial prays the Court :

"To adjudge and declare that the contract concluded on April ist/i4th, 1913, between the French firm Collas & Michel, known as the 'Administration générate 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 not duly entered into and is accordingly inoperative as regards the Greek Government in so far as concerns lighthouses situated in the territories of Crete (including the adjacent islets) and of Samos, which were assigned to that Government after the Balkan wars."

[14] These submissions were not amended in the respective Counter-Memorials.

[15] In the course of public sittings held on June 28th and 29th, 1937, the Court heard :
M. Basdevant, Agent, on behalf of France ;
and M. Politis, Agent, on behalf of Greece.

[16] The submissions formulated in the documents of the written procedure were maintained in their entirety by both Parties in their oral arguments.
Numerous documents in support of their contentions were filed on behalf of each Party [FN1].

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[FN1] See list in annex.
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[17] The above being the state of the proceedings, the Court must now adjudicate.

***

[18] The circumstances in which the dispute has been submitted to the Court are as follows.

[19] By its Judgment of March 17th, 1934 [FN2], the Court decided that

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[FN2] Publications of the Court, Series А./В., Fasc. No. 62.
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"the contract of April 1st/14th, 1913, between the French firm Collas & Michel, known as the 'Administration générale 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". [p98]

[20] This decision was however immediately preceded by the following "reservation" :

"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."

[21] By a note verbale addressed on July 17th, 1934, by the Greek Ministry for Foreign Affairs to the French Legation at Athens, the Greek Government, while declaring itself prepared to execute the judgment, drew attention to the point thus reserved, observing "that according to the actual terms of the judgment the Court of International Justice has only decided a question of principle; it was not called upon to specify which are the territories covered by the impugned contract in so far as concerns lighthouses situated in them and it refrained from so doing". The note goes on as follows : "Since, therefore, this question remains open, \ the Greek Government, after mature reflection, considers that the lighthouses in Crete and Samos remained outside the ambit of the contract concluded on April 1st/14th, 1913, between the concessionary firm and the Ottoman Porte, as the territories , in which they are situated were detached from Turkey well before that date."

[22] The note verbale of July 17th, 1934, concludes with the following words : "On the basis of the foregoing considerations, the Greek Government is firmly convinced that the 1913 contract, as to the validity of which the Court of International Justice was called upon to decide, does not in any case cover lighthouses in the islands of Crete and Samos. This contract was entirely inoperative in so far as concerns these islands, which were detached from Turkey before 1913, just as it is now in so far as concerns Greece, the legal successor of those islands which were previously autonomous territories incorporated in the territory of Greece in 1913."

[23] As the French Government was unable to accept the standpoint set out in the above-mentioned note of the Greek Government, the two Governments agreed to submit the dispute for decision by the Permanent Court of International Justice.

[24] The Special Agreement of August 28th, 1936, which constitutes the basis of the present proceedings, is as follows :

"The Permanent Court of International Justice having in its Judgment of March 17th, 1934, made the reservation 'that the [p99] 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'. And a difference of opinion having arisen between the Government of the French Republic and the Government of the Kingdom of Greece, regarding the applicability of the principle laid down in the said judgment in the case of lighthouses situated in Crete, including the adjacent islets, and in Samos.
The aforesaid question being regarded on both sides as accessory to the principal question which has already been decided by the Permanent Court of International Justice.
The two Governments have considered that it should be referred to the Permanent Court of International Justice.
Accordingly they request the Court, taking into account the period at which the territories specified below were detached from the Ottoman Empire, to give its decision upon the following question :
'Whether the contract concluded on April 1st/14th, 1913, between the French firm Collas & Michel, known as the 'Administration générate 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 of Crete, including the adjacent islets, and of Samos, which were assigned to that Government after the Balkan wars.'
In regard to all points not provided for in this Agreement, the Court is requested to follow the Special Agreement of July 15th, 1931, it being agreed that the time-limits for the filing of the Memorials and Counter-Memorials mentioned in Article 3 of this Special Agreement shall only begin to run as from October 15th, 1936.
The answer to the question submitted to the Court being regarded as relating to the applicability in a particular case of the judgment already rendered by the Court, the two Governments recognize the present Agreement as taking effect as soon as it has been signed and agree that it may be transmitted to the Court by either Party.
In faith whereof the undersigned, being duly authorized so to do, have signed the present Agreement.
Paris, August 28th, 1936.
(Signed) Yvon Delbos.
(Signed) N. Politis." [p100]

***

[25] The subject of the present dispute is clearly defined by the Special Agreement. The difference of opinion which has arisen between the two Governments since the 1934 judgment relates to "the applicability of the principle laid down in the said judgment" (para. 2). The two Governments agree in regarding this question "as accessory to the principal question which has already been decided by the Permanent Court of International Justice" (para. 3) and to regard the answer to it "as relating to the applicability in a particular case of the judgment already rendered by the Court" (para. 7).

[26] Thus the present dispute is explicitly confined to the single question which was reserved by the Court's Judgment of March 17th, 1934. It in no way reopens the "question of principle", which was decided in that judgment and which is now res judicata, namely that, in itself, the contract of April 1st/14th, 1913, was duly entered into. The Parties simply ask the Court whether or not the island of Crete, including the adjacent islets, and the island of Samos, are included amongst the territories to which the Court's decision on the question of principle applies and whether, consequently, the above-mentioned contract was "duly entered into" in so far as concerns them.

[27] The issue thus formulated amounts to the question what special reasons or circumstances were contemplated and recognized by the Parties to the Special Agreement as a possible ground for an exception to the principle adopted by the 1934 judgment, such as would warrant the exclusion of the territories of Crete and Samos from the application of that judgment.

[28] The Court considers that the Parties have expressed themselves very clearly on this point in their Special Agreement ; for the question formulated between quotation marks in paragraph 5 is introduced by the following words which define and limit its scope: "[The two Governments] request the Court, taking into account the period at which the territories specified below were detached from the Ottoman Empire, to give its decision upon the following question...."

[29] Accordingly there is one circumstance, and one circumstance only, which will warrant an exception to the application of the Judgment of March 17th, 1934, on the question of principle, namely: the period at which detachment from the Ottoman Empire took place in the case of the territories in question. This conclusion is fully borne out by the note verbale of July 17th, 1934, above mentioned, in which the Greek Government explains that, in its view, the lighthouses situated in the territories of Crete and Samos "remained outside the ambit of the contract concluded, .... as the territories in which they are situated were detached from Turkey well before that date". It follows that [p101] in deciding the question submitted to it the Court cannot, without disregarding the terms of the Special Agreement, take into account considerations which might warrant an exception to the applicability of the principle laid down by the Judgment of March 17th, 1934, for reasons other than the sole ground for an exception admitted by the Parties.

[30] As the Special Agreement links together in a necessary relation of cause and effect the period at which the detachment of the territories took place and the validity of the contract in respect of these same territories, it is essential to determine the period at which the territories of Crete, including the adjacent islets, and of Samos were respectively detached from the Ottoman Empire.

[31] In this connection Article 9 of Protocol XII [FN1] signed at the same time as the Treaty of Lausanne of July 24th, 1923, must logically be considered first. For this stipulation, which is binding on both Parties, formed the basis of the judgment on the question of principle rendered by the Court on March 17th, 1934. The first question therefore is whether that Article warrants in favour of Crete and Samos an exception to the principle laid down by the Court's decision.

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[FN1] Publications of the Court, Series C, No. 74, p. 68; League of Nations, Treaty Series, Vol. 28, p. 203.
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[32] Article 9 says that a State succeeding to Turkish territory is subrogated as regards the rights and obligations of Turkey "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". The Article adds that "this subrogation will have effect as from the coming into force of the treaty by which the transfer of territory was effected....".

[33] It is to be observed that this stipulation is couched in general terms ; it makes no exception or reservation. Article 9 applies to all the territories which were detached from Turkey after the Balkan wars, without regard to the special status possessed by some of them under the Ottoman Empire. Again, in Article 9, the idea of the detachment of the territories is closely , connected with and correlated to that of their assignment to |another sovereign : both ideas constituting the elements in the transfer of territory mentioned in the same Article. This provision leaves no room for a break in continuity of the sovereignty over the territories referred to therein. It provides for the direct and immediate succession of Greece to the obligations contracted by the Ottoman Empire in respect of the territories over which Ottoman sovereignty is ceded. The close correlation established between the detachment and assignment of the [p102] territories by Article 9 of Protocol XII was recognized by the Agent for the Greek Government in his oral statement on June 28th, 1937. It had already been emphasized by the Court in a passage in its Judgment of March 17th, 1934 (p. 28), where the Court said that the expression "territories which were assigned" to Greece "after the Balkan wars or subsequently" used in the Special Agreement of July 15th, 1931, and the expression "territories detached from Turkey after the Balkan wars" in Article 9, meant the same territories, "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". Finally the same correlation is emphasized in the following paragraph, containing the reservation of which the Greek Government is now availing itself. In that paragraph the judgment speaks of "territories detached from Turkey and assigned to Greece after the Balkan wars....".

[34] It follows from the foregoing that there is nothing in the text of Article 9 of Protocol XII to warrant any differentiation between the various territories which were assigned to Greece, from the standpoint of the applicability of the decision rendered by the Court on the question of principle in 1934.

[35] The reasoning of the Greek Government as stated by its Agent, in particular in his oral pleadings (on June 28th and 29th, 1937), seeks precisely to preclude any contention based on the absence of differentiation in Article 9. The line of argument is as follows : Article g had no need to differentiate, because having been framed to meet a different case from that which is now submitted to the Court, it is, a priori, incapable of being applied to the territories of Crete and Samos. Thus, we are told, Article 9 could not do otherwise than consider the detachment and the assignment of the territories as two aspects of a single operation, for the hypothesis envisaged by that Article was that of territories transferred from the sovereignty of Turkey to another sovereignty. According to the contention of the Greek Government, the situation of the territories of Crete and. Samos is of an entirely different order. The latter territories, which enjoyed a wide autonomy, were not and could not have been detached from Turkey by a transfer of sovereignty from that State to Greece, seeing that in 1913 Turkey had long since lost her sovereignty in regard to them. It follows, according to this argument, that in April 1913 the Ottoman Government no longer had any title, competence or capacity to conclude the contract of April 1st/14th, 1913, and accordingly the contract, though valid in itself, was not duly entered into or validly concluded in respect of these territories. It is in this sense, in the Greek Government's contention, that the Court's judgment of 1934 requires to be "supplemented". [p103]

[36] It must be borne in mind, in the first place, that in order to secure acceptance for its contention, no matter on what arguments it was founded, the Greek Government would have needed to prove that, at the time of the conclusion of the contract in dispute, the territories of Crete and Samos were already, in law, territories detached from the Ottoman Empire, in the full meaning of the word "detached", which in the opinion of the Court connotes the entire disappearance of any political link. For, as has been already observed, it is the date of the detachment of the territories which is decisive in this case. The wide forms of autonomy conferred on the territories in question could only be taken into consideration for the solution of the present dispute, if they justified the conclusion that the autonomous territories were already, at the date of the contract, detached from the Ottoman Empire to the extent that every political link between them and the Sublime Porte had been severed, so that the Sultan had lost all power to make contracts in regard to them. It is from that standpoint alone that the Special Agreement, which respects the res judicata of ,1934, authorizes the Court to consider the question of Cretan and Samian autonomy; there is no occasion to examine the nature of these forms of autonomy or their juridical character from any other standpoint. The issue, reduced to its essence, may be stated as follows : had every political link between the Ottoman Empire and the islands of Crete and Samos disappeared at the time of the conclusion of the contract in dispute, that is to say, on April 1st/14th, 1913 ? Only if it were shown that no such link subsisted on that date, would it be possible to regard these territories as having been already detached from the Ottoman Empire before the conclusion of the contract, and to consider the latter as not having been duly entered into in regard to the aforesaid territories.

[37] The Court finds that this has not been shown by the Greek Government.

[38] Notwithstanding its autonomy, Crete had not ceased to be a part of the Ottoman Empire. Even though the Sultan had been obliged to accept important restrictions on the exercise of his rights of sovereignty in Crete, that sovereignty had not ceased to belong to him, however it might be qualified from a juridical point of view. That situation persisted until the time when Crete was separated from the Ottoman Empire by treaties, which were treaties of cession, and became a "detached territory" within the meaning of Article 9 of Protocol XII. These treaties are subsequent to the conclusion of the contract in dispute.

[39] The first of them, in chronological order, is the Treaty of Peace signed in London on May 17th/30th, 1913, between Bulgaria, Greece, Montenegro, Serbia and Turkey, a treaty which [p104] though not ratified was maintained as between Greece and Turkey by the Treaty of Athens of November 1st/14th, 1913. The Treaty of London states expressly in Article 4, which relates to Crete, that

"His Imperial Majesty the Sultan declares that he cedes to Their Majesties the Allied Sovereigns the island of Crete and renounces in their favour all rights of sovereignty and all other rights which he possessed over that island [FN1]"

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[FN1] Translation taken from the American Journal of International Law, Vol. 8, 1914.
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[40] It would be difficult to find more decisive evidence of the persistence of the Sultan's sovereignty up to that date than is furnished by this formal renunciation made by the latter in an international instrument signed by Greece.

[41] As regards Samos, after the Sultan had declared in Article 5 of the Treaty of London of May 17th/30th, 1913 - which was maintained, as stated above, between Turkey and Greece by the Treaty of Peace of Athens of November 1st/14th, 1913 - that he entrusted to the Powers the decision as to the future of all the Ottoman islands in the Aegean Sea, except the island of Crete, Samos was assigned to Greece by the decision of the Powers on February 13th, 1914. This decision was confirmed by Article 12 of the Treaty of Lausanne of 1923, in which Samos is expressly mentioned.

[42] The conclusion follows inevitably that the lighthouses in Crete and Samos are lighthouses situated in territories which not only were assigned to Greece after the Balkan wars but also were not detached from the Ottoman Empire until that time. Article 9 of Protocol XII of Lausanne is therefore applicable to the contract of April 1st/14th, 1913, and that contract must be considered as having been duly entered into, and as accordingly operative in regard to Greece in respect of the said territories. The "particular case" therefore falls within the scope of the decision on the question of principle delivered by the Court on March 17th, 1934.

[43] In opposition to this conclusion, deduced from the international instruments, the Greek Government has argued that Samos, since 1832, and Crete, since 1899 and in any case since 1907, did in fact enjoy a régime of autonomy which was so wide that those islands must be regarded as having been thenceforward detached from the Ottoman Empire.

[44] No confirmation of this view is obtained by the examination either of the Cretan Constitutions or of the organic Statute of Samos. The autonomy of Crete was only recognized by the Constitutions of 1899 and 1907 "under the conditions established by the four Great Powers". These conditions [p105] emphasized "the supreme rights of H.I.M. the Sultan over Crete" (notification of Nov. 30th, 1898, Memorial of the Greek Government, Annex 7) and the "legitimate rights of the Sultan" (pro memoria of March 28th, 1899, Memorial of the French Government, Annex 2). So far as concerns the island of Samos, the Hatt or organic Statute of December 22nd, 1832, definitely proclaimed its dependence on the Sublime Porte. Samos is described therein as forming "part of the hereditary estates of H.M. the Sultan Mahmoud Khan" (Memorial of the Greek Government, Annex 21), and the concessions conferred by the Statute are expressly subordinated by it to the condition that the inhabitants of the island "should henceforth be faithful subjects of the Ottoman Empire". The provisions of the Statute, and especially those concerning the appointment and powers of "the chief of the island" and the homage due to the Sultan, leave no doubt as to the continued political subordination of Samos. Nor does any different conclusion follow from a study of the Hatt or additional regulation of September 16th, 1852 (Memorial of the Greek Government, Annex 22).

[45] As the Court has reached the conclusion that Crete and Samos still formed part of the Ottoman Empire on April 1st/14th, 1913, the date of the contract in dispute, there is ho need for it to discuss the objection to the effect that the contracting Parties could not have intended that their contract should cover these territories, in view of the fact that the latter had already been definitively removed from the Sultan's sovereignty at the above-mentioned date. Moreover, it must be remembered that the Judgment of March 17th, 1934, declared that, in the absence of any express statement of a contrary intention, the object of the contract of 1913 must be regarded as identical with that of the original contract of i860, which is applicable to the whole of the Ottoman Empire.

[46] FOR THESE REASONS,
The Court,
by ten votes against three,
decides
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, 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 [p106] in the territories of Crete, including the adjacent islets, and of Samos, which were assigned to that Goverament after the Balkan wars.

[47] 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.

[48] Done at the Peace Palace, The Hague, this eighth day of October, one thousand nine hundred and thirty-seven, in three copies, one of which is to be placed in the archives of the Court and the others to be forwarded to the Government of the French Republic and the Royal Greek Government respectively.

(Signed) J. G. Guerrero,
President.
(Signed) J. López Oliván,
Registrar.

[49] Sir Cecil Hurst, Vice-President, Mr. Hudson, Judge, and M. Séfériadeès, 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 separate opinions which follow.

[50] Jonkheer Van Eysinga, Judge, while in agreement with the operative clause of the judgment, has appended a separate opinion regarding the grounds on which the judgment is based.

(Initialled) J. G. G.
(Initialled) J. L. O. [p107]


Separate Opinion of Sir Cecil Hurst.

[51] I am unable to agree with the judgment of the Court in this case.

[52] The question which the Court is to decide is set out in the Special Agreement. It is whether the contract of 1913 (prolonging the lighthouse concession until 1949) was duly entered into and is accordingly operative as regards the Greek Government in respect of lighthouses in Crete and Samos. In answering the question the Court is to take into account the period at which Crete and Samos were detached from the Ottoman Empire, but this provision does not alter the fact that the question on which the Court is to adjudicate is whether or not the contract of 1913 was or was not duly entered into so as to be binding on Greece in respect of lighthouses in Crete and Samos.

[53] The Parties in their presentation of the case have taken the line that the date at which Crete and Samos were detached from the Ottoman Empire was the only question for the Court to decide. In this respect the judgment of the Court has followed the line indicated by the Parties. It has adopted the view that, as the present case is accessory to the case brought before the Court by the same Parties in 1934, and as the judgment in the previous case held that the contract of 1913 was duly entered into, that question is settled once and for all and cannot be re-opened. I am unable to concur in this view.

[54] I accept the conclusion reached in the judgment of the Court that Crete and Samos were detached from the Ottoman Empire after the Balkan wars. It is on the footing that they were so detached that in my opinion the Court should examine the question whether or not the contract in question was duly entered into and is accordingly operative as regards the Greek Government as to lighthouses in Crete and Samos.

[55] It is common ground that if Crete and Samos were detached from the Ottoman Empire after the Balkan wars the question whether the contract of 1913 is or is not operative as regards Greece as to lighthouses in Crete and Samos will depend on whether or not the said contract falls within the scope of Article 9 of Protocol XII of the same date as the Treaty of Lausanne.

[56] That Article lays it down that in territories detached from Turkey the successor State is subrogated to the rights and obligations of Turkey under concessionary contracts. The effect [p108] of the various relevant articles of Protocol XII was considered by the Court in its decision of 1934. It is there said (p. 25) that Article 9 of Protocol XII naturally presumes that the concessionary contracts in question (i.e., contracts falling within the scope of the Article) are valid contracts. The only objections to subrogation which it admits are those based on the date or the validity of a concessionary contract.

[57] It follows from the above passage that no subrogation under Article 9 can take place in respect of any concessionary contract unless and until it is shown that the contract is a valid contract : that is to say, that before it can be held that Greece is subrogated to Turkey's rights and obligations under the contract of 1913 it must be shown that that contract was duly entered into.
[58] The Court's decision in 1934 held that the contract of 1913 was duly entered into, but an examination of the text of the judgment shows that the finding that the contract was duly entered into was a finding that it was duly entered into according to Ottoman law.

[59] The points with which the judgment of 1934 successively deals in this respect are questions such as the authority given to the Turkish Minister of Finance to sign the contract on behalf of the Ottoman Government, the interpretation of the Turkish law of 1910 as to public utility concessions, the validity and effect of the Turkish Decree Law of April 1st/14th, 1913, authorizing the making of the contract, and the subsequent submission of the Decree Law to the Turkish Parliament.

[60] If the subrogation under Article 9 of Protocol XII of a succession State (Greece) to Turkey's rights and duties under the contract of 1913 depends on the contract being a valid contract, i.e., a contract duly entered into, the question whether that subrogation extends to lighthouses in Crete and Samos must depend on the validity of the contract in Crete and Samos, i.e., on whether or not the effect of the contract extended to those territories.

[61] Subrogation implies the substitution of one party for another in the enjoyment of the rights and obligations which had previously been incumbent on the latter. It does not imply - and cannot imply in the present case - that Greece was to benefit by and to be burdened with, rights and obligations in Crete and Samos which had not previously belonged to and been borne by Turkey. If Article 9 by way of subrogation imposes on Greece in respect of Crete and Samos rights and obligations under the contract of 1913, that consequence must be limited to rights and obligations which previously had appertained to Turkey. Subrogation - which is all that the Article provides for - cannot have the effect of making the contract operative as against Greece in Crete and Samos to a greater [p109] extent than it was previously operative in Crete and Samos as against Turkey.

[62] To justify a decision that the effect of Article 9 of Protocol XII is to render the contract of 1913 operative as regards the Greek Government in respect of lighthouses in Crete and Samos, the question of the validity of the contract as regards Crete and Samos must be enquired into. If it is to be assumed as a consequence of the finding by the Court in its judgment of 1934 that the said contract was duly entered into because it was duly entered into according to the Ottoman law in force at the time, it must be shown that the Ottoman law in question was also in force in Crete and in Samos at that time. This is a question entirely independent of the date of the detachment of Crete and Samos from the Ottoman Empire. It is an enquiry which is necessary in order to show that the conditions presented by Article 9 are fulfilled - one of those conditions being that the contract was duly entered into.

[63] Unfortunately upon this point the Court has had no help from the Parties. France, as the State supporting the interests of the Lighthouse Administration, has taken the line that the question of the validity of the contract of 1913 as regards Crete and Samos is not a question upon which the Court has to adjudicate (Distr. 3895, pp. 45, 46). Greece has taken the line that the autonomy of Crete and Samos - the juridical element upon which the validity of the contract in respect of those territories must turn - is a matter which was only germane to the question of the date at which Crete and Samos respectively were detached from the Ottoman Empire.

[64] In the absence of all examination of this question in the written and oral proceedings before the Court, I feel doubt whether as a member of the Court I ought to express an opinion on the point, but the material supplied by the respective Governments and annexed to the memorials and counter-memorials throws sufficient light on the problem to render it convenient that I should express the view at which I have arrived.

[65] I take first the case of Crete. It is common ground between the Parties that at the date of the contract of 1913 Crete enjoyed a full measure of autonomy. The texts of the Constitutions of 1899 and 1907 are annexed to the Greek Memorial. Reference has already been made in a previous page of this opinion to the various questions which the Court examined and answered in its judgment of 1934 as the ground for holding that the contract of 1913 was duly entered into according to Ottoman law, questions such as the authority given to the Turkish Minister of Finance to sign the contract on behalf of the Ottoman [p110] Government, the interpretation of the Turkish law of 1910, the effect of the Turkish Decree Law of April 1st/14th, 1913, and the subsequent submission of this Decree Law to the Turkish Parliament. The most cursory examination of the Cretan Constitutions is sufficient to show that none of these questions has any bearing on the question whether the said contract was duly entered into according to the law in force in Crete. The Turkish Minister of Finance could receive from the Sultan no authority to sign on behalf of the Turkish Government a contract operative in Crete; the Turkish law of 1910 did not apply to Crete; the Turkish Decree Law of April 1st/14th, 1913, had no operation in Crete ; nor did the jurisdiction of the Turkish Parliament extend to Crete. This is sufficient to show that the Court's judgment of 1934 gives no warrant for holding that the contract of 1913 was duly entered into as regards Crete. As the validity of the contract is one of the conditions which must be fulfilled before the subrogation provided for in Article 9 of Protocol XII takes place, and as I see no reason for assuming that the said contract was duly entered into as regards Crete, the judgment of the Court should, in my view, have held that as regards lighthouses in Crete the contract is not operative as regards the Greek Government.

[66] The French Agent maintained in his oral arguments (Distr. 3895, p. 46) that the Sultan of Turkey was entitled to conclude with force and effect in Crete the contract of 1913 because the lighthouses in the Turkish Empire constituted an Imperial service under the jurisdiction of the central authorities. It was therefore alleged that the autonomy conferred upon Crete did not impinge on the Sultan's rights in this respect. How far exactly the argument was intended to extend was not clear because it was admitted that the Cretan authorities were also concerned. The Turkish authorities had admittedly lost the right to expropriate land and such expropriation might be essential under the terms of the concession if new lighthouses had to be erected; admittedly also all the details of local administration were in the hands of the Cretan authorities who were therefore entitled to have their say in the matter. Under this argument the right of the Sultan to prolong the lighthouse concession did not carry with it the power on the Sultan's part to execute the contract. For that purpose the co-operation of the Cretan authorities was necessary. If so, one would assume that the Cretan authorities should also have been associated in the renewal of the concession, so that it might be enforceable against them. There is in any case nothing in the wording of the Cretan Constitution which [p111] justifies the contention that any such limitation as that suggested had been imposed on the Cretan autonomy.

[67] As regards Samos, the Hatts of 1832 and 1852 appear to have conferred upon the island an autonomy less far-reaching than in the case of Crete. The Hatt of 1832 confers upon the Samian Council only "I'autorité intérieure de l’île". After the date of the supplementary Hatt of 1852, no change appears to have been made in the measure of autonomy enjoyed by the island up to the time of the contract of 1913. Neither the 1832 instrument nor that of 1852 is at all clear as to the extent to which the Porte retained any rights of control or administration in the island. Both of them were anterior in date to the first Turkish lighthouse concession, and the facts submitted to the Court by the French Agent, and not contested by the Greek Agent, show that in practice the lighthouse concession, including the periodical renewals of the concession, was treated as operative in Samos, at any rate up to the time of the Balkan wars. In these circumstances I can see no sufficient reason for dissenting from the conclusion reached by the Court that the contract of 1913 was operative as regards the Greek Government in so far as concerns lighthouses in Samos, though I reach that conclusion in a different manner.

(Signed) Cecil J. B. Hurst. [p112]

Separate Opinion by Jonkheer Van Eysinga.

[Translation]

[68] I have been led to the same conclusion as the Court's judgment, but by a somewhat longer road.

[69] The view set forth in the judgment to the effect that the territories of Crete, including the adjacent islets, and of Samos were detached from the Ottoman Empire after the Balkan wars agrees with my own opinion.

[70] On the other hand, I consider that the period at which the territories in question became detached from the Ottoman Empire is not the only question which the Court has to decide.

[71] Admitting that the territories of Crete including the adjacent islets and of Samos were detached from the Ottoman Empire after the Balkan wars, the question on which the Special Agreement seeks for a decision may be stated as follows: "Whether the contract concluded on April 1st/14th, 1913, between the French firm. Collas & Michel, known as the 'Administration générate 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 duly entered into and is accordingly operative as regards the Greek Government in so far as concerns lighthouses situated in the territories of Crete, including the adjacent islets, and of Samos, which were detached from the Ottoman Empire and assigned to Greece after the Balkan wars."

[72] The Court has, therefore, to ask itself 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 the lighthouses in Crete and Samos.

[73] That question cannot be decided by declaring that, since Crete and Samos were detached from the Ottoman Empire after the Balkan wars, Article 9 of Protocol XII of Lausanne of 1923 applies to these territories, and that, in consequence, Greece is subrogated as regards the rights and obligations arising for Turkey out of the concessionary contract of April 1st/14th, 1913, in so far as concerns lighthouses situated in the two islands. For, according to the judgment of 1934, Article 9 of Protocol XII of Lausanne "naturally presumes that the concessionary contracts in question are valid contracts" and, therefore, duly entered into (p. 25).

[74] Accordingly, whether the question is regarded from the standpoint of the text of the Special Agreement or of the judgment of 1934, the Court is still called upon to decide whether the contract of April 1st/14th, 1913, was duly entered into in so far as concerns the lighthouses in the two islands. [p113]

[75] In this connection, it should be noted that the Special Agreement regards the issue submitted to the Court as a question of the applicability of the principle adopted by the judgment of 1934 to the lighthouses in Crete and Samos.

[76] That judgment had decided that the contract of April 1st/14th, 1913, was duly entered into and was 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. The Court had reached that decision by founding itself on the general constitutional law of the Ottoman Empire, but it had not expressed its opinion as to whether this general constitutional law was really operative in all the territories detached from the Ottoman Empire and assigned to Greece after the Balkan wars. It was, inter alia, to the possibility that this might not be the case as regards certain territories, that the reservation made in the Court's judgment of 1934 had referred; the "questions of fact and of law" which the Court reserved in 1934 have now to be decided in so far as concerns Crete and Samos. For it might be found that the autonomous authorities in the two islands were alone competent to conclude a concessionary contract therein for the lighthouses owing, precisely, to the international status of wide autonomy enjoyed by these islands. Whether or not the Parties expressed an opinion on this point, the Court is obliged to do so both in virtue of the Special Agreement and of the judgment of 1934.

[77] The view set forth above in no way invalidates the principle laid down in the judgment of 1934, a principle about which the Court is now called upon to declare whether it is applicable to the islands of Crete and Samos. So far as concerns all the other territories detached from Turkey and assigned to Greece after the Balkan wars, the judgment of 1934 has decided, without reservation, that the contract of April 1st/14th, 1913, was duly entered into and is accordingly operative in regard to the Greek Government. And indeed in regard to all these other territories Greece accepts the principle laid down by the judgment of 1934. Only in regard to Crete and Samos, territories which enjoyed a special international status and which had already been the subject of the reservation preceding the operative clause of the judgment of 1934, did the question arise whether the contract of April 1st/14th, 1913, was duly entered into and was accordingly operative in regard to the Greek Government.

[78] I consider that this question should be answered in the affirmative, for the reasons which follow.

[79] The administration of lighthouses is a service which in most States belongs to their domestic jurisdiction.

[80] But there are cases in which, on the one hand, lighthouses are imperatively demanded in the interest of international [p114] navigation, while, on the other hand, the State in whose territory the lighthouse would have to be operated, is not in a position to provide for its administration and maintenance. As a result of this situation, it sometimes happens that the Maritime Powers come to an agreement with the territorial State in regard to the operating of a lighthouse. A classic example is the light on Cape Spartel which marks the entrance to the Mediterranean for ships coming from the Atlantic ; the operation of that light was regulated under a Convention concluded at Tangiers in 1865 between the Maritime Powers and Morocco.

[81] The case of the lighthouses in the Ottoman Empire offers certain analogies. It was after the .Crimean War, when the navies of the Western Powers had had ample occasion to note the lack of an adequate lighting system on the Ottoman coasts, that an international commission was appointed to consider the problem. The Turkish lighthouse service dates from 1856 ; and it was in 1860 that MM. Collas and Michel undertook the service in virtue of the concessionary contract of August 8th/ 20th of that year.

[82] The lighthouse service covers the whole of the Ottoman Empire, except in so far as certain parts of that Empire are excepted from it. Here we have a case of an "Imperial interest" which was primarily a matter of concern to international shipping. The Powers, and especially Great Britain, gave the Sultan many proofs of their keen and persistent interest in the matter, and on more than one occasion made it the subject of diplomatic representations. This international interest was not governed by any regulation, but the Sultan recognized that it was an international interest of a very real character (see Young, "Corps de Droit ottoman", 1905, III, pp. 104 et seq.).

[83] We see here one of the numerous examples of the interest displayed by foreign Powers in the affairs of the Ottoman Empire. Better known instances are afforded by the management of Public Hygiene, of the Public Debt, the régime of the Mouths of the Danube and the treatment of foreigners in general, matters which have in many cases been regulated in a more formal manner. The international interest thus continuously manifested tended to preserve the character as "Imperial interest" of all these services for which the Sublime Porte itself had to support the responsibility.

[84] For the rest, there is nothing to show that the administration of the lighthouses was delegated to the autonomous territories of Crete and Samos. In order to demonstrate the contrary, it has been sought to rely on Article 30 of the Constitution of Crete of 1899 and on Article 36 of the Constitution of 1907. It is laid down in those Articles that the Prince (the High [p115] Commissioner) concludes conventions, for which he demands the vote of the Chamber. I cannot help thinking that the place occupied by this clause in the Cretan Constitution shows that it had in view conventions, in the sense of treaties between States, and not internal conventions of private law or of administrative law. But even if it were otherwise, the very wide autonomy enjoyed by Crete was subordinated by the terms of Article 1 of the Constitutions of 1899 and of 1907 to the conditions established by the four Great Powers. But it is common ground that the maintenance of the Sultan's legitimate rights formed one of those conditions (see the pro memoria of the Great Powers delivered to Prince George on March 28th, 1899, French Memorial, p. 38).

[85] If there is any one sphere in which the protecting Powers insistently maintained the Sultan's rights in the island of Crete, it was that of the lighthouses. At the very outset, the Cretan Government had raised the question of the lighthouse dues (Greek Counter-Memorial, p. 25). Though recognizing the concession extended in 1894, the Cretan Government demanded that the share of the revenues due to the conceding Government should be paid to itself and not to the Ottoman Government. The protecting Powers never admitted these claims. On the contrary, they persisted in recognizing the Sultan as the competent authority in lighthouse questions in regard to the island of Crete also. It was to the Imperial Ottoman Government that the protecting Powers addressed themselves on September 15th, 1911, when there was a demand for additional lighthouses in Crete (French Memorial, p. 23) ; and the refusal with which the Cretan Government's claim was met on May 10th, 1912, in the matter of the lighthouse dues, is decisive (Greek Counter-Memorial, p. 29).

[86] It appears to me that the French Agent was right when he stated on June 29th last that the Sultan continued to be the supreme head of the lighthouse service, which is not a local public service, but is really an Imperial public service (oral pleadings, p. 46). This was the case as regards Crete up to the very end, and there is nothing to show that it was otherwise in regard to Samos.

[87] For the rest, it is not surprising, when a maritime country undergoes an evolution in the direction of decentralization -whether that evolution takes the form of shocks or of "peace¬ful change" - that it should be on the maritime coasts that the power of the former central government continues longest to subsist, in the territories that have become autonomous. Many examples of this might be cited. I will merely recall that in the Treaty regulating the constitutional position of the Irish Free State, signed in London on December 6th, 1921, between the British Government and Ireland, the former Government [p116] reserved for itself very important rights in regard to lighthouses in the Free State.

[88] It follows from the foregoing that the contract of April 1st/14th, 1913, extending the concession to September 4th, 1949, was duly entered into and is accordingly operative as regards the Greek Government in so far as concerns lighthouses situated in the territories of Crete, including the adjacent islets, and of Samos, which were detached from the Ottoman Empire and assigned to Greece after the Balkan wars.

(Signed) V. Eysinga. [p117]

Separate Opinion of Mr. Hudson.

I.

[89] The special agreement of August 28th, 1936 formulates the question before the Court in this case in the following terms :

Whether the contract concluded on April 1st/14th, 1913, between the French firm Collas & Michel, known as the "Administration générate 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 of Crete, including the adjacent islets, and of Samos, which were assigned to that Government after the Balkan wars.

[90] In a case between the same parties decided by the Court on March 17th, 1934 (Series A/B, No. 62), the question had been formulated in the special agreement of July 15th, 1931 (Series C, No. 74, p. 11), as follows :

Whether the contract concluded on April 1st/14th, 1913, between the French firm Collas & Michel, known as the "Administration générate 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.

[91] The striking similarity of these two questions makes it necessary to begin a consideration of this case with an analysis of the Court's judgment of March 17th, 1934, as a preliminary to an interpretation of the special agreement of August 28th, 1936.

*

[92] In the previous judgment, after analyzing the terms of the special agreement of July 15th, 1931 in the light of its history and after summarizing the arguments of the parties, the Court stated (p. 18) that

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. [p118]

[93] The answers given to these three questions constituted the basis of the judgment. As to the first question, the conclusion was reached that the parties to the contract of April 1st/14th, 1913 did not intend to exclude from the operation of the contract territories which were then under military occupation. As to the second question, the Court took the view that the contract of April 1st/14th, 1913 was "duly entered into" according to Ottoman law, in the sense that the formalities required for the validity of the contract had been complied with. As to the third question, the answer was given that the contract of April 1st/14th, 1913 was enforceable against Greece under the provisions of Article 9 of Protocol XII signed at Lausanne on July 24th, 1923 (28 League of Nations Treaty Series, p. 203). In addition to the replies given to these three questions, the Court answered (p. 26) three objections advanced by the Greek Government "to the consequences of applying Article 9 of Protocol XII".

[94] The Court's decision in 1934 was
that the contract of April 1st/14th, 1913, between the French firm Collas & Michel, known as the "Administration générate 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 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.

[95] Immediately before setting forth this decision, however, the Court made an important statement which it characterized as a "reservation". The special agreement of July 15th, 1931 had envisaged, in Chapter II as summarized by the Court (pp. 12, 13), "subsequent proceedings which are to follow the delivery of the judgment by the Court and the 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". It was doubtless with these "subsequent proceedings" in mind and to ensure that too much would not be read into its judgment that the Court made the following statement (p. 28):

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 [p119] 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] It may not have been necessary for this purpose, but the reservation would seem to have left the way open to the Greek Government, with respect to lighthouses in a particular territory, to contend, at any rate for reasons not dealt with in the judgment, that the operative part of that judgment to the effect that the contract of 1913 was duly entered into and was accordingly operative as to Greece, was not applicable.

[97] This is precisely what happened. Four months after the delivery of the judgment, on July 17th, 1934, the Greek Ministry for Foreign Affairs addressed a note verbale to the French Legation at Athens (French Memorial, p. 42), in which it expressed the willingness of the Greek Government to carry out the Court's judgment, but observed that the Court had given, in its own words, only a decision on a question of principle, that it had not been called upon to determine the territories to which the contract was applicable, and that it had refrained from any such determination. The note verbale indicated the intention of the Greek Government to take advantage of the reservation made by the Court, and to confine its acceptance of the judgment to the questions which were before the Court and which the Court actually decided. It proceeded to set forth the view of the Greek Government that the contract of April 1st/ 14th, 1913 did not apply to lighthouses in Crete and Samos, that it was dénué de tout effet à l'égard de ces îles. No subsequent diplomatic exchanges have been placed before the Court; but the view of the Greek Government not being shared by the French Government, on August 28th, 1936 the two Governments concluded the special agreement under which the present case arises.

*

[98] The special agreement of August 28th, 1936 shows by its opening words that its conclusion is to be attributed to the reservation made by the Court in 1934, the text of the reservation being quoted in the first paragraph. The second paragraph describes the "difference of opinion" between the two Governments by stating that it relates to the question of "the applicability of the principle laid down" by the Court's judgment "in the case of lighthouses situated in Crete, including the adjacent islets, and in Samos". According to the third paragraph, this question was regarded on both sides as "accessory to the principal question" already decided by the Court; and in the fourth paragraph it is said that the two Governments considered that this question (ladite question) should be [p120] referred to the Court. The fifth paragraph states that in consequence the two Governments request the Court, taking into account the period at which the territories specified were detached from the Ottoman Empire, to give its decision on the question there formulated. The sixth paragraph contains a reference to points of procedure. The seventh paragraph, dealing with the agreement's entering into force and its transmission to the Court, again emphasizes that the answer to the question submitted is "regarded as relating to the applicability in a particular case of the judgment already rendered by the Court".

[99] It is the task of the Court to interpret this special agreement. In the performance of this task, the Court is not bound by the interpretations given to the instrument by the parties. Nor is it bound to confine itself to dealing with the instrument in the light of the arguments advanced by the parties. The questions to be decided are those contained in the special agreement as the Court itself construes that agreement; they may or may not be the same as those to which the parties have addressed themselves. Whatever may be the position when obligatory jurisdiction is being exercised, in answering a question placed before it by a special agreement the Court must have full freedom to construe the terms of the agreement, to say what is the question which the agreement requires it to answer, and to frame its answer in accordance with the applicable law.

[100] Moreover, the text of the special agreement must be considered as a whole (Series B, No. 2, p. 23; Series A/B, No. 49, p. 317). This is especially important where, as here, the parties have not only formulated a question and directed that a certain element be taken into account in deciding it, but have also employed various descriptive phrases with reference to the question formulated.

[101] The quotation in the first paragraph of the special agreement indicates the intention of both parties to place this case within the cadre of the reservation made by the Court in its earlier judgment, and to raise, in the words of the Court, "questions of fact and of law" which were not argued in 1934 and which the Court was not then asked to decide. In other words, it indicates that the Court is now asked to say whether Crete and Samos are among "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".

[102] The various descriptions given by the special agreement to the question submitted to the Court contain further indications: it is described (in the second paragraph) as a question "regarding [p121] the applicability of the principle laid down by the said judgment [of 1934] in the case of lighthouses situated in Crete, including the adjacent islets, and in Samos" ; (in the third paragraph) as being "accessory to the principal question which has already been decided"; and (in the seventh paragraph) as a question the answer to which will relate "to the applicability in a particular case of the judgment already rendered" by the Court. Clearly the parties did not intend to attack the earlier judgment, or to reopen any of the issues which it closed. That judgment was a décision de principe ; it dealt in a general way with lighthouses to which the contract was applicable in Greek territories; it fixed "the scope of the contract" as governed by the intention of the parties ; it declared that certain formalities of. Ottoman law had been complied with ; and it established, again in a general way, the enforceability of the contract as regards Greece. All of these points are now res judicata, and the parties show no disposition to challenge their character as such. The descriptions found in the special agreement indicate that what is now sought is a judgment on the "applicability in a particular case", "applicability .... in the case of lighthouses" situated in particular territories, of the points which were decided in 1934.

[103] In reaching its decision, the Court is asked to take into account (trancher, en tenant compte) a special element of the case, viz., the period (l'époque) at which Crete and Samos were "detached from the Ottoman Empire". Quite naturally so, as the only argument which had been advanced by the Greek Government in its note verbale of July 17th, 1934 in support of its view that the contract of April 1st/14th, 1913 did not apply to lighthouses in Crete and Samos, was that these territories had been detached from Turkey before that date. If other arguments might have been employed to support its view, the Greek Government had not chosen to use them. Hence, the Court would not be able to settle the "difference of opinion" which arose, without dealing with this argument. This explains the emphasis given by the parties to a particular feature of this case.

[104] Yet is does not follow that the Court has been asked to deal only with this one element of the case. Nor does it follow that the Court is bound to answer the question formulated solely on the basis of its view as to the epoch of detachment. If the parties had so intended, they would have submitted to the Court a question formulated in terms which would have raised this single and simple issue. This they did not do. Instead, they formulated a much broader question relating to the validity and enforceability of the contract of 1913 as concerns [p122] lighthouses in Crete and Samos. The Court having said in its previous judgment that the contract of 1913 was duly entered into and was accordingly operative as regards the Greek Government with respect to lighthouses situated in territories assigned to Greece after the Balkan wars or subsequently, but having reserved the specification of such territories in which lighthouses in regard to which the contract of 1913 is operative are situated, the parties have now asked specifically whether Crete and Samos are among those territories. In the terms formulated, the question is whether the contract of 1913 "was duly entered into and is accordingly operative as regards the Greek Government in so far as concerns lighthouses situated in the territories of Crete, including the adjacent islets, and of Samos". To restrict the issues in this case to the single question as to the epoch of detachment would be to pay insufficient attention to this careful formulation in the fifth paragraph of the special agreement. While the Court is bound to take account of the period at which Crete and Samos were detached from the Ottoman Empire, it is free to appreciate the importance of that element of the case in arriving at its answers to the much broader questions presented.

[105] Viewing the special agreement as a whole, it seems that the parties intended to place before the Court questions which fall within the reservation made in the 1934 judgment ; that they thought of these questions as being concerned with the application, with respect to particular territories, of principles already laid down by the Court in its décision de frincipe of 1934; that they wished to raise, as to these territories, "questions of fact and of law" which the Court had said "might be raised in that connection" and which the Court had not been asked to decide in 1934 ; that they saw one, but only one, of these "questions of fact and of law" as being that relating to the epoch of detachment of Crete and Samos from the Ottoman Empire; and that they intended that the Court should deal with the "questions of fact and of law" connected with the validity and enforceability vis-à-vis Greece of the contract of 1913, with respect to lighthouses in Crete and Samos, in so far as those issues had not become res judicata in consequence of the 1934 judgment.

II.

[106] It will suffice for the purposes of this opinion to deal very briefly with the disposition which should be made of the case in accordance with the view expressed above. [p123]

*

[107] In the judgment of March 17th, 1934, the Court stated (p. 28) that its decision was founded on Article 9 of Protocol XII which provides 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, 1934, 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.

[108] Several questions arise in connection with the application of this Article to the contract of April 1st/14th, 1913, as regards lighthouses situated in Crete and Samos.

*

[109] As Crete and Samos were not "detached from Turkey under the Treaty of Peace" of Lausanne, Article 9 of Protocol XII can have no application to them unless it can be said that they were ."detached from Turkey after the Balkan wars". The question arises, therefore, as to the sense in which the term "detached" (détachés) was employed in Article 9.

[110] The same term "detached" (détachés) was employed in the fifth paragraph of the special agreement of August 28th, 1936. Early in the written proceedings, the French Agent (French Memorial, p. 5) thus stated the question now before the Court :

Ce dont il s'agit précisément est ceci: Est-ce que, dans une certaine période ou ces territoires n'étaient pas encore grecs, ils pouvaient déjà être considérés comme n'étant plus ottomans au point que le Gouvernement impérial ottoman n'avait plus le droit d'y passer certains contrats ?

[111] It is in this sense, the Greek Agent insists, that the epoch of detachment is to be taken into account by the Court; in his view, detachment is to be considered to have taken place upon [p124] a discontinuance of the power to conclude concessionary contracts such as the contract of April 1st/14th, 1913. It was apparently in this sense that the term "détachés" had been employed in the Greek note verbale of July 17th, 1934. At later stages of the presentation of the case, the French Agent seems to have taken a different view; he assimilated the word detaches in the fifth paragraph of the special agreement to the word détachés in Article 9 of Protocol XII, and he argued that "le détachement, dans le systéme de ce texte [i.e., Article 9], ne se conçoit pas sans un changement de souveraineté". It thus appears that the parties are not agreed as to the meaning of the term detaches as used in the special agreement of August 28th, 1936. Even if they can be said to be agreed that the term as used in the special agreement is the equivalent of the term as used in Article 9 of Protocol XII, they are not agreed as to the meaning of the term in the latter instrument.

[112] A somewhat similar disagreement existed in 1934 (Series A/B, No. 62, pp. 15-16) with reference to the term "duly entered into", used both, in the special agreement of July 15th, 1931 and in Article 1 of Protocol XII. The Court was then aided by reference to travaux préparatoires relating to the special agreement of July 15th, 1931 ; but in this case it has been supplied with no comparable historical facts with reference to the special agreement of August 28th, 1936.

[113] The Court's judgment of 1934 offers little assistance in this connection. There it was said (p. 28) :

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.

[114] In this case, the question as formulated in the special agreement distinctly states that the territories in question, Crete and Samos, "were assigned to that [the Greek] Government after the Balkan wars", and yet the Court is directed to take into account the period at which these territories were detached [p125] from the Ottoman Empire. In view of this fact, it can not be said in this case, as it was said in the former case, that "the same territories are meant" by territories assigned to Greece and by territories detached from the Ottoman Empire.

[115] The word détachés might have been used in the fifth paragraph of the special agreement of August 28th, 1936 in either of two senses : (1) in the sense of discontinuance of such governmental power as is necessary for making concession contracts, i.e., the sense in which at one time the Agents of both parties interpreted the word ; or (2) in the sense of a complete extinguishment of a former sovereignty by such an act as cession. The assignment of one of these meanings to the term as used in the special agreement would not necessarily, however, dispose of the question as to the meaning of the term as used in Article 9 of Protocol XII.

[116] Whatever meaning is given to the term detaches in the fifth paragraph of the special agreement and in Article 9 of Protocol XII, it would still remain for the Court to appreciate the importance of the question for a decision of this case.

*

[117] Another question must be answered, also, before the Court, basing its decision on Article 9 of Protocol XII, can say that as to lighthouses in Crete and Samos the contract of April 1st/14th, 1913 was "duly entered into and is accordingly operative as regards the Greek Government". This cannot be said unless it can be found that, notwithstanding the autonomy possessed by Crete and Samos, the Sultan or the Ottoman Government had legal power on April 1st/14th, 1913 to enter into concessionary contracts with reference to lighthouses in these territories. Protocol XII did not have the effect of giving validity to contracts which had never been valid theretofore. It did not set up ultra vires contracts. When it was being drafted, the Turkish representative, Ismet Pasha, must have had this point in mind in saying that he ne peut pas reconnaître comme valables des engagements pris par le Gouvernement de Constantinople pour les territoires sur lesquels ne s'étendait pas son autorité effective. (Recueil des Actes de la Conférence de Lausanne, second series, I, pp. 419-420.) The whole conception of the subrogation for which Article 9 provides is predicated upon the previous existence of droits et charges de la Turquie. Hence, even if the term dûment intervenu should be given a narrower meaning, the contract of April 1st/14th, 1913 cannot be held to be opérant vis-à-vis the Greek Government, with respect to lighthouses in Crete and Samos, unless the Sultan or the Ottoman Government had [p126] power on that date to bind these territories by such a contract.

[118] The Agents of the parties have not directly addressed themselves to this question. The French Agent has not argued it because in his view of the task of the Court the question does not arise. The Greek Agent has confined his discussion of the effect of the autonomy of Crete and Samos to its bearing on the epoch of detachment. This presentation of the case does not preclude the Court's consideration of the question as having been placed before it by the special agreement. Such consideration is greatly facilitated by the Agents' exploration of the extent of the autonomy of Crete and Samos in connection with the question as to the epoch of their detachment from the Ottoman Empire.

[119] This question as to the power of the Sultan or the Ottoman Government to conclude the contract of April 1st/14th, 1913 in respect to Crete and Samos, was in no way determined by the Court's judgment of 1934. It was not then considered by the Court, and except for a very general reference by the Greek Agent to Crete as a vassal State (Series C, No. 74, p. 317) it was in no way adumbrated in the argument before the Court at that time. It is one of the "questions of fact and of law" to which the Court's reservation applies.

*

[120] With the assistance and protection of other Governments - viz., those of France, Great Britain, Italy and Russia - and by measures taken in opposition to the will of the Ottoman Government, Crete achieved its autonomy in 1899. Its Constitution was finally adopted by the Cretan Assembly on April 29th, 1899, after it had been approved not by the Ottoman Government but by representatives of the four European States meeting in Conference at Rome. The first Article of the Cretan Constitutions of 1899 and of 1907 provided that the island of Crete, with the adjacent islets, should constitute a State (πολιτεια) enjoying a complete autonomy, under the conditions established by the four Great Powers. Throughout the action of these latter they had at all times declared their intention to maintain the integrity of the Ottoman Empire ; in notifying the Sublime Porte of their selection of a High Commissioner of Crete, on November 30th, 1898, they expressed a willingness to confirm the "supreme rights of the Sultan" in Crete (Greek Memorial, p. 34), and in notifying the High [p127] Commissioner of their approval of the first Constitution, on March 28th, 1899, they stipulated that the Constitution should not impinge on the "legitimate rights" of the Sultan (French Memorial, P- 38).

[121] The Agent of the Greek Government characterizes the situation of Crete after 1899 as that of an État mi-souverain; the Agent of the French Government stresses the suzerainty of the Sultan. It is unnecessary to attempt to place the Crete of this period in a precise legal category. Nor is it necessary, in this opinion, to set forth the complete extent of the Cretan autonomy. It will suffice to say that after 1899 the Ottoman Government exercised no governmental powers in Crete, and that although the Sultan's flag was ceremoniously flown in Crete until February, 1913, the government of this island was entirely in the hands of the High Commissioner and the Cretans themselves, subject in certain respects to the approval of the four European States. In its external relations, the Cretan Government acted independently of the Ottoman Government, also, and it concluded or acceded to various international conventions, among them those of the Universal Postal Union and the International Telegraphic Union. If it can be said that a theoretical sovereignty remained in the Sultan after 1899, it was a sovereignty shorn of the last vestige of power. He could neither terminate nor modify the autonomy with which Crete had been endowed against his will and with the sanction of the four European States. A juristic conception must not be stretched to the breaking-point, and a ghost of a hollow sovereignty cannot be permitted to obscure the realities of this situation.

[122] After 1908 the union of Crete with Greece was envisaged in various acts of the Cretan Government, and in 1912, on the eve of the war with Turkey, some steps were taken in this direction. By Article 4 of the unratified Treaty of London of May 17th/30th, 1913 (107 British and Foreign State Papers, p. 656), it was provided that the Sultan ceded the island of Crete to the Balkan States allied against him and renounced in their favour all the rights of souveraineté et autres qu'il possédait over the island ; this provision was maintained between Greece and Turkey in the Treaty of Athens, signed on November 1st/14th, 1913 and brought into force later in that month (ibid., p. 893), and by the end of 1913 all the other Balkan States had renounced their interests in Crete in favour of Greece. An analysis of the equivocal phrase employed in the Treaty of London would shed no light on the issues of this case. [p128]

[123] The concession contract of 1860 as it had been extended in 1879 and 1894 was applicable to lighthouses in Crete, and it did not cease to be so applicable after the realization of Cretan autonomy. The firm of Collas & Michel was therefore permitted to continue its maintenance of the previously established lighthouses after the reins of government had passed to the local authorities, but it seems that no new lighthouses were established. Negotiations were under way from 1903 to 1911 concerning the construction of lighthouses at Spada and Elaphonissi, during the course of which the governments of certain maritime States, for reasons which were not stated, addressed themselves to the Ottoman Government with reference to the question. The fact does not warrant any conclusion to be drawn as to the lodgment of legal power; the Cretan Government finally refused to authorize the construction, and in the end nothing came of the matter. After the expiration in 1924 of the contract of 1860 as extended in 1879 and 1894, the Greek Government did not in any way admit the applicability in Crete of the contract of April 1st/14th, 1913 ; indeed, it took into its own hands the construction of lighthouses in Crete (Series C, No. 74, p. 212).

[124] The position of Crete with. reference to the contract of April 1st/14th, 1913 may be compared with that of Cyprus with reference to the contract of June 3oth/July 12th, 1879. By the Convention of June 4th, 1878, the Sultan consented to assign the island of Cyprus to be occupied and administered by Great Britain; an Annex to the Convention, dated July 1st, 1878, envisaged the evacuation of the island by Great Britain on certain conditions. Unquestionably, Cyprus remained a part of the Ottoman Empire and subject to the Sultan's sovereignty during the period of the occupation, and until it was annexed by Great Britain on November 5th, 1914. The annexation was recognized by Turkey in Article 20 of the Treaty of Peace signed at Lausanne on July 24th, 1923. The lighthouse contract of August 8th/20th, 1860 was applicable to three lighthouses in Cyprus, and it appears from a statement made by the Colonial Secretary's Office in Cyprus (Greek Memorial, p. 65) that after the beginning of the British occupation "the concessionaries were allowed by the British Government to continue in the exercise of their privilege, but on the expiration of the concession, 4th September, 1884, formal handing over of the lighthouses to the Government of the Island took place". Apparently no claim was made that after September 4th, 1884 the contract of 1860 as extended in 1879 continued to be applicable to lighthouses in Cyprus.

[125] It seems necessary to conclude that on April 1st/14th, 1913 neither the Sultan nor the Ottoman Government had power to extend the then existing concessionary contract with respect [p129] to lighthouses in Crete and the adjacent islets. Hence, whether Crete should be said to have been detached from the Ottoman Empire before or after the Balkan wars, it is impossible to apply Article 9 of Protocol XII as the basis for subrogating Greece to the rights and charges of Turkey under the contract of April 1st/14th, 1913 in so far as it concerns lighthouses in Crete and the adjacent islets.

[126] On this view, the Court should refuse to say that 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 of Crete, including the adjacent islets.

*

[127] The autonomous regime set up in Samos in 1835 was in some respects unlike that in Crete. If it was originally due to the intercession of France, Great Britain and Russia (1 Young, Corps de Droit ottoman, p. 114), it rested on the expressed will of the Sultan, on the provisions of the Hatt issued by him on August 23rd, 1832 and on the additional provisions contained in the Hatt issued by him on September 16th, 1852. The first of these decrees describes Samos as a "part of the hereditary estates" of the Sultan. Unlike Crete, Samos was obligated to pay an annual tribute to the Sublime Porte. While the Government of the Principality exercised a large control of its local affairs, it seems doubtful whether in external affairs it ever achieved independence comparable to that of Crete. In this connection, however, it may be noted that in 1926 the Greco-Bulgarian Mixed Arbitral Tribunal held that a vessel flying the Samian flag was to be treated as a neutral vessel during a war in which Turkey was a belligerent. (Katrantsios v. Bulgaria, 7 Recueil des Décisions des Tribunaux arbitraux mixtes, p. 39.)

[128] The autonomy of Samos continued for almost four score of years. By Article 5 of the unratified Treaty of London of May I7th/30th, 1913, it was provided that the future of the island should be determined by the Heads of six European States; this provision was maintained between Greece and Turkey by Article 15 of the Treaty of Athens of November 1st/ 14th, 1913. Three months later, on February 13th, 1914, the Governments of the six States decided to turn the island over to Greece ; this decision was confirmed by Article 12 of the Treaty of Peace signed at Lausanne on July 24th, 1923.

[129] While the autonomy possessed by Samos was extensive, admittedly (French Mémoire, p. 33) being complete as to commercial and maritime matters, the Samian Government did not [p130] assume control of the administration of lighthouses and it did not interfere with the performance in Samos by Collas & Michel of their contracts concluded with the Ottoman Government. The contract of 1860, in Annex A (Series C, No. 74, p. 382), provided for the establishment of the Feu de Vathy in Samos, and the Greek Government admits (ibid., p. 210) that this Feu was established in 1890 ; it must have been established, therefore, under the concession contract of 1860 as extended in 1879. The Greek Government also admits that the Feu de Tigani was established in Samos in 1912 ; this must have been done under the contract of 1860 as extended in 1879 and 1894. In reply to a question the French Agent has stated that Collas & Michel maintained these two lights until 1915, and collected the droits de phares until a more recent date ; and that neither the Samian Government nor the Greek Government made objection to the application of the contracts.

[130] These facts have a bearing on the extent of the autonomy enjoyed by Samos. In the face of them, it is impossible to say that on April 1st/14th, 1913 the Sultan or the Ottoman Government lacked the legal power to extend the concession of Collas & Michel with respect to lighthouses in Samos. The same facts also dispose of a contention advanced by the Greek Agent that in view of the autonomy possessed by Samos the parties to the contract of April 1st/14th, 1913 did not intend that the contract should apply to Samos.

[131] It follows that whatever view be taken of the meaning of the term détachés in the fifth paragraph of the special agreement of August 28th, 1936 and in Article 9 of Protocol XII, Samos was not detached from the Ottoman Empire until after the Balkan wars. As the contract of 1913 was not ultra vires to the Sultan or the Ottoman Government with respect to lighthouses in Samos, Article 9 of Protocol XII subrogates Greece to the droits et charges of Turkey under the contract, in so far as it concerns such lighthouses.

[132] This makes it necessary to say that 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 territory of Samos.

***

[133] To the extent indicated in this opinion, I am compelled to dissent from the judgment of the Court.

(Signed) Manley O. Hudson. [p131]

Separate Opinion by M. Seferiades.

[Translation]

[134] Being deeply sensible of my duties as an international judge, I find myself obliged to disagree with the Court's judgment and, availing myself of the right conferred on me by Article 57 of the Statute, I deliver my separate opinion in the following terms.

I.

[135] The question which the Court was called upon to decide was very clearly formulated in the Special Agreement signed between France and Greece on August 28th, 1936, and in particular in the part of the Special Agreement which is printed between quotation marks; there it is definitely stated that the Court is requested to answer the following question:

"Whether the contract concluded on April 1st/14th, 1913, between the French firm Collas & Michel, known as the 'Administration générate 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 duly entered into and is accordingly operative as regards the Greek Government in so far as concerns lighthouses situated in the territories of Crete, including the adjacent islets, and of Samos, which were assigned to that Government after the Balkan wars. "

[136] The origin of this dispute is simply the Court's Judgment of March 17th, 1934.

[137] By the terms of that judgment the Court, while finding that the above-mentioned contract of 1913 between the Ottoman Government and the firm of Collas & Michel had been duly entered into, nevertheless made a reservation; for it informed France and Greece that, as the Special Agreement "only requires it to decide on a question of principle",.... "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"; and it was particularly necessary to make this reservation because - still according to the words of' the judgment - in 1934 "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".

[138] Thus the Court, in its judgment of 1934, by definitely reserving the question "which are the territories, detached from Turkey and assigned to Greece after the Balkan wars or [p132] subsequently, where the lighthouses in regard to which the contract of 1913 is operative are situated", gave rise to the Special Agreement of 1936, which merely asked it to decide the question which it had itself reserved in 1934.

[139] These are the causal facts as a consequence of which the Court is now called on to decide whether, in regard to the islands of Crete and of Samos, the contract of 1913 "was duly entered into and is accordingly operative".

[140] It is simply, as is stated in the Special Agreement of 1936, a question of "the applicability in a particular case of the judgment already rendered", a case having its basis in the reservations made by the Court.

[141] And the question stated above, between quotation marks and in very clear language, by the Special Agreement is the only question that we are called on to decide, and we have to decide it in all its aspects.

[142] It were vain to suggest that, as the reservation made by the Court in 1934 was not inserted in the operative clause of the judgment, but in the recitals which precede it, this reservation does not exist; that the Court must be deemed to have decided the question in its entirety in 1934, in regard also to the territories of Crete and Samos, and that there is res judicata in respect of those islands just as much as of the other territories assigned to Greece after the Balkan wars.

[143] Such reasoning would not only amount to regarding the recitals of a judgment as being entirely devoid of purpose, but, in the present case, would gravely detract both from the legal and moral value of the judgment of 1934, for one would thus be led to conclude that the different parts of that judgment were in conflict with one another and that it was therefore an inconsistent judgment.

[144] For the rest, this line of argument was ruled out by the Special Agreement of 1936, from the very outset.

[145] For in that Special Agreement it is definitely admitted that the Permanent Court of International Justice, in its Judgment of March 17th, 1934, made "the reservation 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".

[146] That is the actual text of the reservation which was formulated by the Court in 1934 as a result of our deliberations.

[147] To misapprehend the Special Agreement, in the first place, would be to misapprehend the instrument which governs and defines our jurisdiction at this time. To restrict its scope would simply be a denial of justice of a special kind. [p133]

[148] Again, to misapprehend the reservations made by the Court, in the judgment which it delivered in 1934 would be to misapprehend the res judicata, so far as concerns the reservations.

[149] It is necessary therefore, in my opinion, to respect both the Court's judgment of 1934 and the Special Agreement of 1936, which submits to the Court "a particular case of the judgment already rendered by the Court" in order to decide upon the question whether the contract entered into on April 1st/14th, 1913, between "Collas & Michel" and the Ottoman Government was duly entered into and is accordingly operative in so far as concerns lighthouses situated in the territories of Crete and Samos.

[150] In short, the intention of the signatories of the Special Agreement of 1936 is to submit to the Court a particular case, which was not submitted to it in 1934 and upon which, according to its judgment of that date, it had not adjudicated, but in regard to which it had reserved its right to adjudicate in the event of "questions of fact and of law which might be raised in that connection" being submitted to it.

II.

[151] Although the Special Agreement of 1936, on the basis of which the Court is called upon to give judgment, only asks it to say: "whether the contract.... of April 1st/14th, 1913,.... was duly entered into and is accordingly operative.... in so far as concerns lighthouses situated in the territories of Crete.... and of Samos.... ", it appears nevertheless, in its preamble, to give the Court certain guidance for the course which it should follow in arriving at its judgment.

[152] For in this preamble (para. 5) we read that the Court is requested to decide upon the question submitted to it in regard to the islands of Crete and Samos, taking into account the period at which these territories "were detached from the Ottoman Empire".

[153] Now what is the meaning of this preamble ?

[154] According to the view expressed in the Court's judgment, all that the Parties intended by those words was to restrict the powers of the Court so that it need concern itself with no question of fact or of law apart from detachment. Thus, according to this line of reasoning, one would have to conclude that, even if it were stipulated exptessis verbis in letters exchanged between the Parties to the contract of April 14th, 1913 - Turkey and Collas & Michel - that the agreement which they had just concluded should not be deemed operative in regard to the islands with which we are concerned, [p134] the Court should not take that fact into consideration, for it would be bound to decide solely upon the date of detachment and upon nothing else.

[155] I find it absolutely impossible to accept reasoning of that kind.

[156] For, indeed, its effect would be nothing less than the complete and entire suppression of the words of the Special Agreement which the Parties were careful to insert between quotation marks in that text.

[157] It is obvious that paragraph 5 of the preamble of the Special Agreement must have some meaning; nay more, we consider this preamble to be absolutely necessary, provided always that it is understood in its only acceptable sense, which is the following: it simply means that the Court should not concern itself, in the present suit, with the date at which the territories of Crete and Samos were assigned to Greece, but with the detachment of those territories from Turkey, independently of their union with Greece.

[158] And this guidance was absolutely necessary in the present suit; for it was necessary to avoid identifying or confusing in any way the date of the detachment from Turkey of the territories in question and the date of their annexation by Greece - an identification which occurs both in the Special Agreement and in the judgment of 1934.

[159] This meaning of paragraph 5 of the preamble of the Special Agreement of 1936 results quite unmistakably from the whole circumstances of the suit, from the Protocol of Lausanne, from the Special Agreement of 1931, from the written and oral discussions which preceded the judgment of 1934, and from that judgment itself.

III.

[160] In view of the foregoing considerations, and summing up what I have said, I am therefore of opinion that the only question on which the Court should give a decision is whether the concessionary contract signed by Turkey in 1913, which was to become operative in 1924 and terminate in 1949, "was duly entered into and is accordingly operative" in regard to the Greek Government, in so far as concerns the islands of Crete and Samos.

***

[161] In order to reach a decision on this question, which is the only question asked by the Special Agreement, the Court should, in my opinion, consider: [p135]

1. Whether, on April 14th, 1913, the territories of Crete and Samos were detached from the Ottoman Empire, irrespective of the question whether, at that date, they already formed part of the territories of Greece.
2. Whether, for other reasons, attributable for instance to the expressed or tacit intention of the contracting Parties of the concession of 1913 - or even of the party granting the concession alone - the concession of 1913 should be considered as inoperative in regard to the islands with which we are concerned.

[162] It is on the reply to be given to those two questions that the issue of the present suit should, in my opinion, depend.

IV.

At what period were the territories of Crete and Samos detached from the Ottoman Empire ?

(a) In order to decide on that point, it is necessary that we should consider what is the ordinary meaning of the word "detached";
(b) what is the legal meaning of that term, from the standpoint of international law, especially in connection with Eastern affairs and with the dismemberment of Turkey;
(c) what is the meaning which the Parties to the dispute desired to attribute to the term;
(d) lastly, what is the juridical construction which the Court should place upon the term, in case of doubt.

[163] To begin with and from a general point of view, if one turns to the dictionary of the Académie française or to Littré's dictionary, it is clearly seen that the words "detacher" and "détachement" possess more than one meaning. They mean dégager, écarter (détacher les bras), rendre distinct, éloigner (see also the newspaper Le Journal of September 27th, 1937, in an article by M. Guy Mazeline: ".... on sent la population sinon lointaine, du moins détachée.... "), and finally délivrer; and in this enumeration of its different meanings, we find that it is only in the fourteenth place that the sense of "rompre" is assigned to the word by Littré.

[164] In legal terminology, we only find the word "détacher" used in a single case - at any rate so far as I am aware, namely in the expression "bail à premier détachement", or "bail a convenant", signifying lands which are not let on perpetual lease, by which every link with the owner would be severed, but which are, on the contrary, leased for an agreed period [p136] at the end of which the landlord can terminate the tenant's occupancy.

[165] The same applies in regard to the territories which have been detached from Turkey, whether by consent or by force, in different ways, in the course of Eastern affairs.

[166] The territories thus detached from her included, especially, Serbia and the Roumanian provinces in 1856, Bulgaria in 1878, Cyprus, Bosnia and Herzegovina at the same period, Egypt since 1867 and Tunis since 1881. All these countries had, from the above-mentioned dates - and in some respects from even earlier dates - ceased to be under the servitude of concessions which the Turkish Government was wont to impose on the territory over which it still retained all the attributes of sovereignty, in their entirety.

[167] What then is the meaning which should be assigned, in international law, to the words "territories detached" ?

[168] It is perfectly evident, in our view, that "from the point of view of international law a territory must be regarded as detached from a State when it is internationally recognized that the essential attributes of the sovereignty -appertaining to that State have ceased to exist, having henceforth become vested either in the said territory or in another State. And these attributes of sovereignty, without which no sovereignty can be described as such are: the right of free political organization, the right of autonomy in the conduct of social affairs, prisons, public worship, public education, administrative machinery, systems of taxation, communications, organization of the police, the right of civil and criminal legislation, the right of jurisdiction, the obligation of military service, freedom of trade, the right of the flag, the right to conclude treaties and the right of- representation. "

[169] That is, in our opinion, the only scientific definition which, if we wish to avoid factitious and arbitrary constructions, international law justifies us in assigning to the expression "territories detached". Moreover, that definition coincides perfectly with the excellent definition given by M. Huber in his arbitral award of April 4th, 1928, to the effect that sovereignty presupposes not an abstract right, devoid of any concrete manifestation, but on the contrary the continuous and pacific exercise of the governmental functions and activities which are its constituent and essential element.

[170] International situations have to be determined juridically поп ex nomine sed ex re. I am, therefore, unable to accept, in regard to the special point that we are considering, the "diplomatists' formula" labelled "the integrity of the Ottoman Empire", a formula which has become merely a subject for jesting, as an eminent French publicist could not refrain from pointing out. [p137]

[171] Moreover, it has always been in this sense that both the doctrine and jurisprudence of international arbitration have interpreted analogous international situations, even where the hypotheses have been far less beyond cavil than the one we are considering. This was so, for instance, in regard to territories ceded on lease by one State to another for periods of great length, such cases being considered - irrespective of the term used to describe them - as instances of genuine detachment, in spite of the disguised form of acquisition. Thus the arbitral award of August 28th, 1902, delivered by G. Gram and Louis Renault, in the suit between Germany, France and Great Britain, of the one part, and Japan of the other part, rightly held, in its statement of reasons, that the claims which Japan put forward, relying on her sovereignty, were inconsistent with the facts and with practice.

[172] And since the expression "territories detached from the Ottoman Empire" can bear no other meaning, whether in grammar or in law, than that which we have just explained, we also consider it beyond question that this was precisely the sense in which it was employed by Greece when she signed Protocol XII of Lausanne and the Special Agreement of 1936.

[173] Indeed, I find it impossible to believe that, in signing the Treaty of Lausanne, the other signatory Powers can have held any different conception on this point.

[174] For, were it otherwise, we should have to suppose that these Powers were also prepared to admit that, even at that date, certain territories which were already independent or under their administration or protection, such as Cyprus, Egypt, Libya and even Tunis, continued to be territories not detached from Turkey, so that the latter Power would still he entitled to conclude concessionary contracts in respect of them within the meaning of Protocol XII.

[175] But, supposing that there were some doubt as to the meaning of the word "detached", who is it that should benefit by that doubt ? Should the benefit be allowed to MM. Collas & Michel, in whose favour this species of international servitude for the lighthouses had been conceded by Turkey, or should it be allowed in favour of these territories, and consequently of Greece ?

[176] The question needs only to be asked in order to be answered.

[177] For, in accordance with a general principle which is unanimously accepted by the doctrine of international law, all treaties "stipulating servitudes should be interpreted restrictively, so that the servitude, which is an exceptional right attaching to the territory of a foreign State, may limit the sovereignty of the said State as little as possible". [p138]

[178] That is, indeed, a general principle of law recognized by all civilized nations, and it is one of the general principles which the Court is obliged to apply in virtue of Article 38 of its Statute.

[179] That general principle is also set forth in Article 1162 of the French Civil Code in the following terms: "In case of doubt the agreement is interpreted against the party which stipulated the obligation, and in favour of the party which undertook the obligation. " And that is quite natural; for indeed "any obligation, or aggravation of an obligation, implies a restriction of the natural liberty of the debtor. The existence of a contractual obligation cannot therefore be presumed any more than that of a servitude. " (Baudry - Lacantinerie, Traités de Droit civil, XII, No. 569. )

***

[180] Independently of the solution at which we should arrive on the basis of the date of detachment of the islands of Crete and Samos from Turkey, the Court can certainly not, in our opinion, refrain from discussing the question whether, for reasons of another kind, this contract should be considered as having not been duly entered into, and consequently as not being operative in regard to the Greek Government.

[181] For on this point the Special Agreement is clear and definite. Moreover, not only is this the issue on which the Parties are divided, but an examination of this question would, we believe, result in showing the true significance of the word "detachment" in the sense in which it was understood and employed by the authors of the Special Agreement, the instrument which binds the Court - for the latter's jurisdiction cannot extend beyond this expression of the common will of the Parties.

[182] And the common will of the Parties on this point is clearly formulated in the very first words of the French Memorial, where that document seeks, in a truly legal spirit, to "define the issue that is to be debated and the point upon which the Court is asked to give judgment".

[183] And in order to define this issue, the French Memorial says explicitly: "THE EXACT QUESTION AT ISSUE IS THIS: Could these territories, at a certain period when they were not yet Greek, be regarded as no longer Ottoman to the extent that the Imperial Ottoman Government had no longer the right to conclude certain contracts therein ?"

[184] And it was, indeed, to the discussion of that issue that those who pleaded before the Court in the case before us devoted all their efforts. [p139]

V.

[185] Nevertheless, even supposing that the word "detachment" should be read as bearing the meaning attributed to it by the Court, which thus rejects the Greek Government's contention, it would still be necessary to examine even more closely the principal question put by the Special Agreement of 1936, that is to say the question whether for any legal reason, drawn more -particularly from Ottoman law and corroborated by international law itself in regard to this point, Turkey had not ceased both in fact and in law to be able in April 1913 to grant concessions in respect of lighthouses in the islands of Crete and Samos.

[186] In other words - to use the actual terms of the Special Agreement - whether the contract of April 1913 between the firm of Collas & Michel and the Ottoman Empire "was duly entered into and is accordingly operative as regards the Greek Government". That is really the whole question which the Court asked itself in 1934, on pages 7 and 8 of its judgment, and which in principle it decided in favour of the French Government's contention, refraining however from passing upon the question whether there were territories in respect of which that concession was to be regarded as inoperative as regards Greece.

[187] Accordingly, in the case before us we must also consider what is the meaning of the expression "duly entered into and accordingly operative as regards the Greek Government", which occurs in the Special Agreement of August 28th, 1936, on the basis of which the Court is to render judgment.

[188] The question of the meaning of this expression has already been raised and decided in our Judgment of March 17th, 1934; thus the Court has already decided, on pages 16 and 17 of that judgment, that the Parties themselves were in agreement that the words "duly entered into" were taken from Article 1 of Protocol XII and that they have the same sense in the Special Agreement as in the Protocol.

[189] In any case, in regard to this same point, the Court definitely agreed (pp. 20 and 26 of its judgment) that Ottoman law must be examined for the purpose of the decision as to the validity or otherwise of the 1913 concession contract.

[190] As the question is no different now, the undersigned is of opinion that the Court should not have refused to consider the question whether the 1913 contract, as regards the islands of Crete and Samos, was concluded in accordance with the prescriptions of Ottoman law.

[191] For there can be no doubt that Ottoman law was entirely and absolutely violated in the two special cases which we are considering. [p140]

[192] What is the Ottoman law which we must consider ?

[193] In some countries, all the laws of the country are not identical for all territories belonging to it. In France (Alsace, Lorraine and the colonies), in Greece, in England and particularly in Turkey - since it is Turkey with which we are concerned - some territories were or are governed by different laws. This was in particular the case as regards the territories of Crete and Samos.

[194] Accordingly, in answering the question whether the 1913 contract was duly entered into, i. e., in accordance with Turkish law, regard must be had not to the Turkish laws applying in Constantinople, in the Lebanon or in Thrace, but solely to the Turkish laws applicable in the islands of Crete and Samos. It is clear that a decision that these islands were not yet detached from Turkey in April 1913 involves the corollary that all their laws must be regarded as forming part of the Ottoman legal system.

[195] It is however clear that under this special régime of Ottoman public laws, a régime which became at the same time an international régime - for it only came into existence as a result of foreign intervention and international conventions agreed to by Turkey, conventions which did not even allow Turkey to modify the régime without the express or tacit approval of the other contracting States - Turkey no longer had power, in April 1913, to sign concessions in respect of the islands of Crete and Samos, either in favour of her own nationals or, a fortiori, in favour of - persons of foreign nationality - German, French, Italian or Russian.

[196] Since such concession contracts must be regarded as irregularly signed, they will be inoperative as regards the islands with which we are concerned; and they cannot be in any way binding on the States to which these islands were assigned. An examination of the international legal situation of these territories definitely confirms this view.

VI.

The Island of Crete.

[197] First of all, let us see at what period we may say - or even are bound to recognize - that the island of Crete was detached from Turkey.

[198] In our view, Crete was in fact detached from Turkey - I use the word "detached" in its usual sense - when, in 1897, the Ottoman troops were compelled to leave Cretan territory never to return. [p141]

[199] This detachment also acquired full legal effect when the Constitution voted by the Cretan Parliament on April 29th, 1899, was confirmed by the Powers at Rome in 1901.

[200] After that time, the Sultan ceased to intervene in the affairs of Crete. After 1906 this detachment became a veritable axiom of the Eastern question; at that date the Great Powers sent to the King of Greece their famous note to the effect that "giving practical recognition to the interest which H. M. the King of Greece must always take in the prosperity of Crete, they have agreed to propose to H. M. that henceforth whenever the post of High Commissioner of Crete shall fall vacant, His Majesty.... shall nominate a candidate.... and officially inform them of his choice".

[201] Finally, the island of Crete, which had been a semi-sovereign State from 1897 to 1912, became a Greek province in the latter year, when (a) on March 2nd, 1912, a decree of the Cretan Assembly "abolished the institution of a separate government in Crete as distinct from the Government of the rest of the Kingdom of Greece" and more especially when (b), on October 1st of the same year, the Greek Government announced to the Cretan Government that "Greece agrees that henceforward there shall be a common Parliament for the Free Kingdom and the island of Crete".

[202] Following these events and more particularly after the favourable conclusion of the Balkan war, on February 16th, 1913, the Turkish flag of zinc, the last vestige of Turkish suzerainty, which was flown on an islet adjacent to Crete (Suda) was struck and replaced by the Greek flag.

[203] Such shortly is the correct and indisputable history of the detachment of Crete from Turkey.

[204] But in that case, it will be objected, if Crete was already detached from Turkey in 1897 and, as from February 1913, finally became part of the territory of the free and independent State of Greece, why was it thought necessary in the various treaties which followed these wars, and in particular the Treaty of London of May 30th, 1913, and that of Athens of November 14th of the same year, to affirm the renunciation by the Sultan of his rights in respect of the island of Crete ? For if that island was already Greek on April 1st, 1913, or even if the Sultan at that date no longer possessed any rights whatever over Crete, the clauses in the above-mentioned treaties concerning Crete would be quite superfluous.

[205] The answer to this argument is not difficult. It is the answer given in 1814 - at the Congress of Vienna - by Talleyrand to Humboldt when the latter refused to accept, as being [p142] unnecessary and obvious, a certain declaration proposed by the former: "If that goes without saying, it will go still better if we say it. "

[206] This is precisely what Greece wanted as regards Crete: to reaffirm an existing situation. She simply considered that a thing which went without saying would go still better if it was said.

[207] Moreover, a similar course has been adopted more than once in international practice. I will content myself with citing Articles 118 and 120 of the Treaty of Sèvres of August 10th, 1920.

[208] According to the former of these Articles, Turkey recognized the French protectorate in Morocco and accepted all the consequences thereof and we find the same wording in Article 120 as regards Turkey's recognition of the French protectorate over Tunis. In reality, however, the recognition in this way in 1920 of a state of affairs which, in the case of Tunis, had existed since 1881, and in the case of Morocco, since 1912, was entirely superfluous; and I venture to think that it would not occur to anyone to infer from the Treaty of Sèvres of 1920 - assuming that that Treaty had been ratified - that it should be held that the old bonds uniting Turkey to Tunis and Morocco were only to be regarded as severed as from that date.

***

[209] Although the foregoing arguments appear to us to lead inevitably to the conclusion that the island of Crete was detached from Turkey before April 1st/14th, 1913, the date of the concessionary contract between that Power and the firm of Collas & Michel, a circumstance which is to be regarded as rendering this contract inoperative as regards Crete and consequently also as regards Greece which succeeded to the former's rights and obligations, I must also examine the question whether that contract should not also be considered as inoperative as regards that island for reasons of another kind.

***

[210] As has already been observed, on April 29th, 1899, Crete received a special Constitution approved by the Great Powers. This Constitution, which was framed and adopted by a Cretan General Assembly, was communicated to France, Great Britain, Italy and Russia before it became definitive either from the standpoint of Turkey or from that of international law. These Powers caused the Constitution to be examined by their representatives in Rome, constituted as a conference presided over [p143] by the Italian Minister for Foreign Affairs. They demanded certain amendments which were agreed to by the Cretan Assembly. The Constitution thus became absolutely definitive (see English Blue Book, 1901, No. 31 and No. 74).

[211] The legal validity of this Cretan Constitution was never disputed by Turkey, at all events as regards its main features; Greece for her part had no competence to dispute it.

[212] Moreover, since France, through her representatives, had agreed to its terms at Rome, there can be no doubt that this Constitution is an international instrument accepted by the Parties to the case, an instrument which the Court should apply in accordance with Article 38 of its Statute,

[213] Above all, however, it is to be observed that, so far as concerns those who, notwithstanding the existence of this Constitution, hold that the island of Crete continued to form part of the Ottoman Empire, this constitutional law should certainly be regarded as a Turkish law, though only applicable to the island of Crete.

[214] Now what do we find in this Constitution ? In the first place, immediately after Article 1, which declares that the island of Crete enjoys complete autonomy, Article 2 formally lays down that "no servitude can be established in that territory".

[215] More particularly, however, with regard to contracts, treaties or conventions, affecting the island of Crete, what power was it which alone was legally competent to sign such instruments ?

[216] We find a clear and definite answer to this question in Article 30 of the above-mentioned Constitution, whether it be regarded as an international treaty or as a Turkish law imposed upon Turkey by international pressure and consequently not susceptible of modification by the will of that country alone.

[217] According to this Article, "The Prince represents the State [i. e. Crete], concludes conventions for which he demands the vote of the Chamber, coins money and confers decorations. " It cannot be denied that this provision is as clear as possible. Under this provision the Prince was the only authority in Crete entitled to conclude conventions. Moreover, this provision is also corroborated by other articles of the constitutional law in question.

[218] I will merely quote Article 18, under which the only monopolies which may exist in Crete are such as are established by a law to raise public revenues or in the interest of public security, and Article 61 according to which, without a law voted by the Chamber and sanctioned by the Prince, no tax may be imposed or levied, no loan or convention burdening the finances of the State may be concluded and no pension or [p144] gratuity, to be a charge on the exchequer, may be granted.

[219] To my mind, it clearly appears from the foregoing that, under the statute of Crete, the Turkish authorities in Constantinople no longer had any right to enter into conventions in respect of the territory of that island. Moreover, after that date, all conventions affecting Crete concluded with foreign companies or firms were drawn up and signed by the Cretan authorities, without any interference or even protest on the part of the Turkish Government in Constantinople.

[220] International practice therefore entirely conformed to the constitutional provision above mentioned, which met with international acceptance, even if it were regarded only as a Turkish law.

[221] The Greek Memorial quotes a number of examples of these concessions: telephone concessions, salt monopoly concessions, etc.

[222] I therefore think it superfluous to repeat them, and I will simply refer to page 16 of the Greek Memorial.

[223] On the other hand, though the contrary would appear to have been maintained by Collas & Michel, no concession in regard, to the island of Crete has been granted by the Sultan since 1899.

[224] That being so, under what principle or what provision can Collas & Michel claim that the Turkish authorities alone had the right duly to grant them a concession in respect of the light-houses in Crete ? Why and in virtue of what privilege – which would constitute a privilegium odiosum - should they alone of all companies and firms in the world, be entitled to obtain from the central authorities in Constantinople a grant of rights in respect of the island of Crete ?

[225] In my view, this claim is quite incomprehensible. I have studied the memorials of the French Government and heard the oral arguments expounded before us; the latter simply amount to a development of the claim that the Sultan, on April 14th, 1913, was still suzerain of Crete?

[226] Reference has been made to the general rights of suzerainty as though those rights were the same in every case, and as though, if it were a case of actual sovereignty, all territories under that sovereignty were subject to the same laws. But it is undeniable that this is by no means the case: "To say that a State is semi-sovereign does not suffice to define the status of that State in relation to its suzerain. In fact, there are as many varieties of sovereignty as there are semi-sovereign States. The powers of the suzerain depend ultimately on the instrument creating the semi-sovereignty.... " [p145]

[227] In the present case, it is obviously to the 1899 Constitution - whether it was the Constitution of an autonomous State or a Constitution grafted on to the general organic régime of the Turkish Empire - that we must refer in order to ascertain, first, what were the powers of the central Government of Turkey, and, secondly, what were the powers of the Cretan authorities - who were under the suzerainty of the Porte - that had to be respected by the signatories of the concession contract of 1913.

[228] That was a condition which was absolutely necessary, according to the Court's judgment of 1934 itself, in order to make it possible for the 1913 concession to be regarded as duly entered into by Turkey and accordingly operative as against Greece, in so far as concerns Crete.

[229] Moreover, Collas & Michel were perfectly aware which laws - Turkish or otherwise - had to be observed in Crete in order to endow the concession which they desired with any degree of legality. They knew quite well that certain territories under Turkish suzerainty or even sovereignty were governed by special laws which alone were applicable in this connection – laws which Turkey herself had accepted willingly or unwillingly and which governed the provinces placed under her suzerainty.

[230] I could cite more than one example with special reference to the lighthouse question now before us.

[231] The first contract concerning lighthouses was concluded in 1860 - four years after the Treaty of Paris of March 30th, 1856. Under Article 22 of this Treaty, the Principalities of Wallachia and Moldavia (Roumania of the present day) were placed under Ottoman suzerainty. Nevertheless, the contract of 1860 awarding the lighthouse concession to Collas & Michel did not extend to the Roumanian ports of the Black Sea.

[232] Indeed, according to Annex A to this contract, none of the lighthouses were situated in Roumanian territory; this simply means that, notwithstanding the Porte's suzerainty over Roumania at this date, that suzerainty did not comprise a right on the part of the. Constantinople Government to confer concessions, and in particular lighthouse concessions, in respect of Roumanian. territory, and this was because, in consequence of Roumanian semi-sovereignty as established by Article 22 of the Treaty of 1856, the local laws - whether Turkish or otherwise - did not authorize the Constantinople authorities to sign such concessions. The same held good in the case of Cyprus.

[233] Furthermore, all foreign companies holding concessions in the island of Crete granted by the Sultan before 1897, were obliged to recognize that, subsequent to the Cretan Constitution of 1899, their concessions could no longer be duly renewed between them and the authorities of Constantinople because, as from [p146] 1899, Crete was governed by special laws and this held good even if these special laws were to be regarded as Turkish laws.

[234] The firm of Collas & Michel alone persisted in maintaining the contrary.

[235] But that is not all: The concessionary contract of April 14th, 1913, renews the general terms of the original contract of 1860. Now this original contract, a bilateral instrument, assumes certain conditions as being accepted by the central Ottoman authority in Constantinople, which it was in 1913 absolutely impossible to fulfil in the island of Crete.

[236] Under Article 5, for example, the land required for the lighthouses had to be supplied free of charge by the Ottoman Government. According to the same text, however, these lands were to be regarded as Ottoman property and the Turkish authorities were to have the right of access to them and the right to take any police measures.

[237] But in 1913 the Government of Constantinople no longer disposed of any land in Crete. How then could it at that time stipulate for the disposal of land in favour of the firm of Collas & Michel ? This land at that time belonged to Crete and, under the Constitution of 1899, Cretan territory was inalienable (Art. 2) and no servitude could be established in that territory. Moreover, not even rights to real property on the adjacent islets could be acquired without the sanction of the local authorities (Art. 19, para. 3), a provision which clearly presumes that the competence of the Cretan authorities – and that competence alone - extended also to these islets and to the territorial waters of the island.

[238] Similarly, according to Article б of the concessionary contract, materials for the erection or repair of lighthouses were to be duty free. But, since 1899, customs matters in Crete had no longer depended upon the central authorities at Constantinople. Even Ottoman goods paid customs duty on entering Crete, and this state of affairs had been accepted by Turkey herself (see English Blue Book, Nos. 106-107).

[239] In short, the whole agreement concerning the lighthouses concession presupposed obligations on the part of the Ottoman Government - as well as a right of supervision - which this central authority was not only quite unable to exercise in fact and in law, but which it, also, could not require the Cretan Government to exercise or fulfil in its stead in virtue of conventions subsequent to the Cretan Constitution.

[240] That simply amounts to saying that the concession of 1913 granted by Turkey to the firm of Collas & Michel could not [p147] in any way concern Crete, any more than it could concern Cyprus, Egypt or Tunis, just as the concession of 1860 could not concern Roumania, all these territories been governed by special laws, even supposing that those laws were comprised within the general régime of Turkish legislation.

[241] Thus, if Collas & Michel had desired to take the proper legal steps to renew their concession for the lighthouses of Crete also, it was with the Cretan Government - or the Greek Government, according to the date - that they would have had to negotiate; and surely in such a case the Porte could not have raised any objection to their doing so.

VII.

The Island of Samos.

[242] The international situation of the island of Samos, from the point of view with which we are concerned - that is, in particular, in regard to the question whether the Imperial Ottoman Government of Constantinople possessed, in 1913, the necessary juridical competence duly to enter into a contract for the concession of the lighthouse service - though not entirely identical with the situation that has been discussed in connection with the island of Crete, is nevertheless similar to it.

[243] For in the case of the island of Samos, also, we have an organic statute which appears to furnish a' complete answer to the problem. This statute is that of December 22nd, 1832, which was renewed in 1852.

[244] In virtue of this régime, the Sublime Porte, acting with the assent of the representatives of France, Great Britain and Russia, and as a result of their intervention, conferred very wide autonomous rights upon the island of Samos, rights which it could not even curtail, for they were the direct consequence of the protection exercised over the island by England, France and Russia and internationally recognized. Thus, for example, the Sultan was not entitled to send even the smallest number of troops into the island; accordingly, when he sent some troops in 1912, the fleets of the protecting Powers intervened, and Samos was relieved of their presence. Immediately afterwards - still in the year 1912 - Samos was occupied by Greek troops without any protest being made by its protectors.

[245] In view of these events - which are a matter of history - one would in my opinion be quite justified in inferring that Samos was virtually detached from Turkey before the conclusion of the lighthouse contract of April ist/i4th, 1913.

[246] However, even supposing that that inference were not justified, it is at any rate quite indisputable that the island of [p148] Samos was governed by special organic laws which should alone - even if they were Turkish laws - be taken into consideration by the Court, in conformity with its judgment of ig34, in determining whether the concession of 1913 was duly entered into.

[247] It will therefore suffice to analyze the laws which the Sublime Porte granted, as stated above, to the Principality of Samos, in other words, the organic statutes of 1832 and 1852 concerning that island. It is only by such an analysis that it can be shown whether it was the Ottoman Government at Constantinople or the Samian Government which was legally competent to conclude operative concessionary contracts concerning the island of Samos with the firm of Collas & Michel, which would be effective from 1924 until 1949.

***

[248] In virtue of the organic statutes referred to above, authority in regard to the internal affairs of the island was vested in a Council, whose members were selected from the notables of the country and whose President was the Prince of Samos, appointed by the Porte. It was this Council which conducted the general administration of the island, and it was this Council alone which, according to the organic statute, was invested with the necessary authority for the regular conduct of the different branches of the administration of the island, and was empowered freely to decide upon questions relating to commerce (Art. 2).

[249] Furthermore, it was the Council which had power to direct the external relations of the island, although in regard to the latter point its President - who was appointed by the Porte - possessed a right of veto (Art. 4 in fine).

[250] The island was obliged, on the other hand, to pay direct to the Sublime Porte, as an aggregate and inclusive charge, an annual impost of 400, 000 piastres.

[251] The above-mentioned texts are, in my opinion, the only ones which have a direct bearing on the problem that we are considering. And the legal interpretation of these texts, relating, on the one hand, to the extent of the rights conferred on the Principality of Samos and, on the other hand, to the extent of the rights retained by the Sultan, appears to me to be entirely favourable to the Greek case.

[252] The island of Samos was, in 1913, in the same legal situation as Egypt, as Roumania until the year 1878, and as Bulgaria until the year 1908.

[253] Accordingly, although allegations to the contrary have been made - without however being supported by a single example - all the concessions granted in respect of the island of Samos since that period have been duly entered into, not by the Sultan, but by the Council of Samos. [p149]

[254] This was the case, in particular, in regard to:

(1) a telephone concession which was granted in virtue of a law of June 27th, 1890, and implemented in regard to certain details on August 14th, 1890;
(2) a concession for the construction and operation of a tramway which was granted on September 4th, 1898;
(3) a concession for a monopoly of the manufacture of matches which was granted on October 22nd, 1899.

[255] I will refrain from citing a number of other similar concessions concerning sparkling wines, petroleum, coal, sponge fisheries, etc.

[256] Furthermore, concessions granted by the Ottoman Government to companies whose rights extended to the remainder of the Ottoman Empire did not extend to the island of Samos.

[257] This was the case in particular in regard to the Tobacco Monopoly; thus, the small vessels employed by the Monopoly to prevent tobacco smuggling in Turkey were not even entitled to go to Samos. Regarding that point, I have before me a letter dated August 27th, 1895, written by the Grand Vizier Sait to the Principality of Samos, informing the Government of that island that clear and precise orders had been given to the vessels of the Monopoly not to go near the coasts of Samos, and that the captain of a certain vessel who had disregarded these instructions had been punished and dismissed.

[258] Indeed, if it were admitted that Turkey, contrary to her own legislation - which was also international legislation -, was entitled to extend concessions which she had granted in respect of the rest of the Empire, to the island of Samos, she would have succeeded, in a roundabout way, in making Samos pay, not an AGGREGATE AND INCLUSIVE impost of 400, 000 piastres, but a very much heavier charge.

[259] I am aware that, unfortunately, in the case of the concession to Collas & Michel that Company succeeded, in spite of what has been said above, in persuading the Porte to ignore the laws which it had itself granted to the island, willingly or unwillingly, and that the Company was thus able to establish two lighthouses on the coasts of Samos, one in 1890 and the other in 1912, without any possibility of protest by Samos. For how could a protest have been made ? The concessionary Company possessed the nationality of one of the very countries which had assumed the protection of the rights of Samos in regard to the Porte and towards which the Samians have never ceased to manifest their gratitude.

[260] Moreover, as it has been very truly observed, one could not infer from this circumstance that laws regarding public rights are liable to extinction by prescription, after a period which would in this case have been of somewhat short duration. [p150]

***

VIII.

[261] It may perhaps be objected to the argument set forth above, in regard both to Crete and to Samos, that though, on the one hand, the Court must in any case express its opinion on the validity or otherwise of the contract of April 1st/14th, 1913, concerning the lighthouses in the two islands, it would be impossible, on the other hand, to deny its validity, seeing that conventions of this kind must be regarded as having been concluded in the interest of international shipping {Imperial interest); and that, indeed, there have been at least two examples of international conventions, concluded with that very object, which have definitely stipulated that the administration of the lighthouses should not be under the exclusive competence of the State in which these lighthouses were situated. That was the case with the lighthouse on Cape Spartel and the lighthouses in Ireland, in regard to the latter of which certain rights were reserved to Great Britain by the Treaty of December 6th, 1921.

[262] Naturally, it would not occur to anyone to contradict such an evident truth. Any international convention, whatever its form, may stipulate exceptions even to some of the general principles of international law, and in particular it may establish servitudes. But,

1. Such reservations and servitudes cannot possibly be presumed; they must be clear and distinct; and precisely in the case now before the Court, at any rate as regards the island of Crete, it was expressly stated in Article 2 of the Cretan Constitution, accepted by France, that "the Cretan territory is inalienable" and that "no servitude can be established in that territory".
2. Turkey has never been a great maritime country or even a small maritime country. In any case, the Powers which had brought about the liberation of Greece and of Crete and Samos could never - never in any circumstances - have supposed that it would be in the interests of international shipping to entrust the lighting of the coasts of the Eastern Mediterranean to Turkey and to her concessionaires, in regard to the territories which were being freed from the Turkish yoke.
3. In the first place, the question of the lighting of the coasts of a country is so vital to that country - especially in these days of submarines and petroleum -, and in the second place, the international responsibility of the riparian States on this point is so grave that no one could conceive of this lighting [p151] being brought tacitly under a concessionary contract, concluded in contravention of the regime of the country's international status.
4. Finally, and to sum up, it was an international interest which primarily required, in 1913, that the responsibility for the lighting of the Cretan and Samian coasts should be imposed, not upon Turkey, which might grant concessions to German, French, Italian, Russian or other companies, but to the governments of the islands in question which were placed, either in law or in fact, under the plurilateral supervision of the Great Powers.

***

[263] To conclude, in view of the foregoing observations, I am of opinion that the Court, in giving its answer to the question put to it by the Parties in the present suit, is inevitably confronted with the following dilemma:

either the word "detached" must be interpreted, in the case of the islands of Crete and Samos, in the sense indicated by the French Memorial in its opening passage - a sense that was also accepted by Greece - and in that case the concessionary contract of 1913 could not be regarded as duly entered in toor, accordingly, as operative in regard to Greece;
or, on the other hand, these islands were still at that period territories subject to the sovereignty of Turkey and, as such, governed by Turkish laws; but in that case the contract of 1913 not having been signed, so far as concerns Turkey, by persons who were competent and under her own legislation, was not duly signed and must accordingly be regarded as not being operative in regard to Greece.

[264] Therefore, whichever of the two alternative propositions set forth above is adopted, I consider that it is not possible to regard the concessionary contract of 1913 as having been duly signed in respect of the islands of Crete and Samos.

[265] My conclusions may therefore be definitely summed up as follows:

The concessionary contract of April 1st/14th, 1913, signed between the firm of Collas & Michel and the Government of Constantinople, not having been duly entered into in respect of the islands of Crete and of Samos, Greece cannot be considered as subrogated as regards the rights and obligations of Turkey towards the French Company referred to above.

(Signed) S. P. Séfériadés. [p152]


ANNEX.

Documents Submitted To The Court.
_____

A. - Documents Submitted on Behalf of the French Government.

1. Pro memoria of March 28th, 1899, delivered to Prince George by the Consuls-General of France, Great Britain, Italy and Russia at Canea.
2. Note verbals delivered on September 19th, 1911, by the French Embassy at Constantinople to the Imperial Ministry for Foreign Affairs.
3. Note verbale delivered on October 25th, 1911, by the Imperial Ministry for Foreign Affairs to the French Embassy at Constantinople.
4. Letter dated April 12th/25th, 1911, from the Financial Adviser of the Cretan Revolutionary Administrative Commission to the Agency of Light¬ houses.
5. Treaty of Peace signed at London on May I7th/3oth, 1913, between Bulgaria, Greece, Montenegro, Serbia and Turkey (Arts. 4 and 5).
6. Treaty of Peace signed at Athens on November 1st/14th, 1913, between Greece and Turkey (Art. 15).
7. Decision of the Powers notified to the Greek Government on February 13th, 1914.
8. Treaty of Peace signed at Lausanne on July 24th, 1923 (Art. 12).
9. Protocol XII relating to certain concessions granted in the Ottoman Empire, attached to the Treaty of Lausanne of July 24th, 1923.
10. Note verbale of July 17th, 1934, submitted by the Greek Ministry for Foreign Affairs to the Legation of the French Republic
11. Letter from the Lighthouse Administration to the Minister of Marine (Oct. 4th, 1911).
12. Letter from Musurus Pasha to Lord Granville (Aug. 9th, 1884).
13. Summary of Lord Granville's note (Nov. 5th, 1884).
14. Letter from M. Collas to the Minister of Marine (Aug. 30th, 1884).
15. Telegram from M. Madrilly to M. Naman (Sept. 1st, 1884).
16. Letter from M. Naman to the High Commissioner of Cyprus (Sept. 6th, 1884).
17. Note by the French Government's Agent, dated July 3rd, 1937, with annexes relating, respectively, to the question of the flags in the island of Crete in 1913 (the Yarmouth incident, Feb. 14th, 1913), to the operation of the lighthouses in Samos and to the political situation in the island of Samos in 1912.

B. - Documents Submitted on Behalf of the Greek Government.

1. Letter from the French Ambassador at St. Petersburg to the French Minister for Foreign Affairs (April 19th, 1897).
2. Letter from the French Minister for Foreign Affairs to the French Ambassador at St. Petersburg (April 15th, 1897).
3. Draft provisional settlement for Crete (Dec. 18th, 1897).
4. Extract from the provisional régime for Crete (Aug. 23rd, 1898).
5. Pro memoria delivered to King George by the Ministers of the four Great Powers at Athens on November 26th, 1898.
6. Speech delivered by Prince George to the Cretan Assembly on Febru¬ary 20th, 1899. [p153]
7. Communication to the Sublime Porte by the Ambassadors at Constanti¬nople of the four Great Powers concerning the appointment of Prince George (Nov. 30th, 1898).
8. Remarks by the representatives of the four Great Powers at Rome on the draft of the Cretan Constitution (March and April 1899).
9. The Cretan Constitution of April 29th, 1899.
10. Pro memoria delivered to the King of Greece by the Ministers of the four Great Powers at Athens on August 1st/14th, 1906.
11. The Cretan Constitution of February 8th, 1907.
12. Extract from the (unratified) Treaty of London of May 17th, 1913.
13. Extract from the Treaty of Athens of November 1st/14th, 1913.
14. Extract from the Treaty of Bucharest of July 28th/August 10th, 1913.
15. Letter from the French Ambassador at Berlin to the French Minister for Foreign Affairs (March 19th, 1898).
16. Letter from the French Minister for Foreign Affairs (March 27th, 1898).
17. Minute by the representatives of the four Great Powers at Rome on the customs autonomy of Crete (July 1st, 1899).
18. Treaties of June 4th, 1878, and July 1st, 1878, concerning the island of Cyprus.
19. Letter from the Office of the Colonial Secretary of Cyprus to the Greek Consul at Larnaca (Sept. 7th, 1935 ; in English, with French transl.).
20. Letter from the aforesaid Office (Oct. 14th, 1935 ; in English, with French transl.).
21. Halt of December 22nd, 1832, concerning the island of Samos.
22. Hatt of September 16th, 1852, concerning the aforesaid island.
23. Proclamation of the union of Crete with Greece (Sept. 24th, 1908).
24. Decision of the Cretan Parliament (Sept. 30th, 1908).
25. Declaration of the protecting Powers (Sept. 1st/14th, 1911).
26. Decree of the Cretan Revolutionary Assembly (March 2nd, 1912).
27. Declaration made by the Greek Government to the Cretan Government (Oct. 1st, 1912).
28. Appointment of M. Dragoumis as Governor-General of the island of Crete (Oct. 11th, 1912).
29. Preliminaries of peace submitted to the Balkan Allies (March 20th, 1913)
30. Preliminaries of peace submitted to the Ottoman Government (March 31st, 1913).
31. Acceptance by Turkey of the preliminaries of peace (April 1st, 1913).
32. Report of the Financial Adviser of Crete (Jan. 7th, 1905).
33. Idem (Jan. 23rd, 1906).
34. Proclamation of the protecting Powers to the people of Crete (July 10th/23rd, 1906).
35. Declaration of the protecting Powers with regard to lighthouse dues (May 10th, 1912).
36. Note by the assistant Agent of the Greek Government, dated July 3rd, 1937, concerning the political situation in the island of Samos in 1912.

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