B. The Judgment of 1924—Jurisdiction

A. Factual Background and History of Proceedings

1 On 27 January 1914, the Ottoman authorities granted Mavrommatis, a Greek national, concessions relating to an electric tramway system, the supply of electric light and power and of drinking water in the city ofJerusalem. An agreement for similar concessions for the city of Jaffa was concluded in 1916. Due to the outbreak of World War I, the execution of the Jerusalem concessions was postponed in July 1914. During the war, Palestine was occupied by British troops. In 1920, it became a British Mandate (Mandates). In the following year, British authorities reached an agreement on concessions with a certain Rutenberg, which partly conflicted with the Mavrommatis concessions. Rutenberg should obtain the right to request the expropriation of conflicting concessions, but he did not exercise the right. At the same time, negotiations between the Palestinian and British authorities and Mavrommatis on the execution of his concessions continued without substantial results. In 1923, Greek authorities first intervened on behalf of their national, and in 1924, Greece filed an application to the Permanent Court of International Justice (PCIJ). In its first judgment of 1924 the PCIJ dealt withpreliminary objections raised by the British government (see Sec. B below). The decision on the merits followed in 1925 (see Sec. C below). Greece seised the PCIJ once more in 1927 concerning a dispute arising out of the implementation of the 1925 judgment. In its third Mavrommatis judgment of 1927 the PCIJ declared this new application inadmissible (see Sec. D below).

B. The Judgment of 1924—Jurisdiction

2 The PCIJ delivered its first Mavrommatis judgment on 30 August 1924. This judgment dealt exclusively with the preliminary objections raised by the British government challenging the Court’s jurisdiction (International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). Art. 26 Mandate for Palestine of 24 July 1922 gave jurisdiction to the PCIJ for a) disputes between the mandatory and another member of theLeague of Nations such as Greece, b) which could not be settled by negotiation, and c) which related to the interpretation or the application of the mandate. As to the first condition, the PCIJ stated that a ‘dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’ (Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction] 11). According to the respondent, there had only been a dispute between the mandatory and a Greek national, whereas no own rights of the Greek State were involved. The PCIJ did not follow this restrictive view on diplomatic protection. Rather, it retained in words that have become famous:

It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law (ibid 12).

Due to the so-called ‘Mavrommatis fiction’ that the State is asserting its own right, the question, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, becomes irrelevant (ibid.).

3 In a second step, the PCIJ established that the dispute could not be settled by negotiation between Greece and Great Britain within the meaning of Art. 26 Mandate for Palestine, even though most of the negotiations had been led by Mavrommatis without the Greek government being involved. In the view of the Court, a very short discussion may be sufficient if it becomes clear that negotiations will not be successful. Although negotiations with an individual had to be distinguished from negotiations between State[s], previous discussions with an individual may, in a particular case such as that of Mavrommatis, make renewed discussions between States superfluous. While the PCIJ emphasized the importance of the condition of previous negotiations, it also made a point on ‘the flexibility which should characterize international relations’ (ibid 15 ; International Relations, Principal Theories).

4 As Art. 26 Mandate for Palestine confined the jurisdiction of the PCIJ in relation to the interpretation and the application of the mandate, the Court had, in a third step, to analyse Art. 11 Mandate for Palestine(Interpretation in International Law). Art. 11 Mandate for Palestine stipulated that the administration of Palestine should ‘have full power to provide … for public ownership or control of the public works, services and utilities’ in Palestine ‘subject to any international obligations accepted by the Mandatory’. This article was held to be applicable to the Mavrommatis case if the Rutenberg concessions had been granted in exercise of the full power to provide for ‘public control’ (Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction]19) and if the grant could have violated ‘international obligations accepted by’ (ibid 23) Great Britain.

5 According to the PCIJ, the English notion of public control had a more restrictive meaning than the wordcontrôle in the equally authentic French version. In this case, the Court felt ‘bound to adopt the more limited interpretation which can be made to harmonise with both versions and which, as far as it goes, is doubtless in accordance with the common intention of the Parties’ (ibid 19). The narrow reading was confirmed, in the view of the Court, by the fact that English appeared to be the drafting language. The PCIJ thus suggested a legal presumption in favour of the text in which the treaty was drafted. Later on, the Court emphasized, however, that the interpretation adopted on the basis of the more restrictive text must not nullify the expression in the other language version. Finally, the Rutenberg concessions were considered to be acts within the meaning of Art. 11 Mandate for Palestine.

6 The PCIJ then asked which were the ‘international obligations accepted by’ (ibid 23) Great Britain referred to in Art. 11 Mandate for Palestine. A draft of the mandate had more specifically referred to Art. 311 Treaty of Peace between the Allied and Associated Powers and Turkey (‘Sèvres Peace Treaty’) of 10 August 1920 which upheld concessions granted by Turkish authorities before 29 October 1914 (Peace Treaties after World War I). When it became clear that the Sèvres Peace Treaty would not enter into force, the reference was redrafted in more general terms (Treaties, Conclusion and Entry into Force). The relevant provisions of the Sèvres Peace Treaty were later replaced by Protocol XII Lausanne Peace Treaty (1923) which entered into force on 6 August 1924, ie even after Greece had filed its application to the PCIJ. In the view of the Court, Art. 11 Mandate for Palestine had to be understood to refer to this protocol which maintained concessions granted by Turkish authorities while repeating the time limit of 29 October 1914 already contained in Art. 311 Sèvres Peace Treaty. Respect for Mavrommatis’ Jerusalem concessions of January 1914 thus was an international obligation within the meaning of Art. 11 Mandate for Palestine. Great Britain objected that the Court’s jurisdiction was excluded by Protocol XII to the Lausanne Peace Treaty containing nothing about jurisdiction of the PCIJ. The Court agreed that in cases of conflict between the mandate and Protocol XII to the Lausanne Peace Treaty, preference should be given to the protocol, ‘being a special and more recent agreement’ (ibid 31). The Court could not find, however, any provision in the protocol conflicting with the Court’s jurisdiction under the mandate.

7 Greece alleged that the Jaffa concessions of 1916, which had been concluded after the 1914 time limit contained in Protocol XII to the Lausanne Peace Treaty, should be binding on the successor State under a general principle of State succession (State Succession in Other Matters than Treaties). Such principles would not, however, be ‘obligations accepted by’ Great Britain within the meaning of Art. 11 Mandate for Palestine. Therefore, the Jaffa concessions were not covered by the Court’s jurisdiction under Art. 26 Mandate for Palestine.

8 Finally, questions of retroactivity were at stake. Under the perspective of effet utile, the Court concluded that the protocol also granted protection against infringements anterior to the protocol’s coming into force. Moreover, the Court felt free to apply the protocol even though it had not yet come into force when the application was filed because Greece would have been able to resubmit its application at any moment. According to the PCIJ, an international court ‘is not bound to attach to matters of form the same degree of importance which they might possess in municipal law’ (Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction] 34 ; International Courts and Tribunals; International Law and Domestic [Municipal] Law, Law and Decisions of International Organizations and Courts.). The Court therefore did not have to pronounce on the effect of treaties which had been signed but not yet ratified. The PCIJ also affirmed its jurisdiction ratione temporis even though the contested Rutenberg concession agreement was of 1921, whereas the mandate establishing the Court’s jurisdiction entered into force in 1922. According to the PCIJ, jurisdiction based on an international agreement covers, as a rule, all disputes referred to the Court after its entry into force.

9 The judgment was adopted by a small majority of seven judges, five dissenting opinions being attached (Judgments of International Courts and Tribunals). Dissent concerns the existence of a dispute and of sufficient negotiations between the States Parties as well as jurisdiction with regard to Protocol XII to the Lausanne Peace Treaty. According to Lord Finlay and Judge Moore none of the three conditions laid down in Art. 26 Mandate for Palestine were fulfilled. All five dissenting judges held on different grounds that there was no dispute involving Greece but merely a dispute between Great Britain and a Greek national. Moreover, Lord Finlay and other judges criticized that the Greek government had made no effort to settle the alleged dispute by negotiations. They deemed it insufficient that Greece had simply espoused the claim of its national. Lord Finlay and other judges also rejected the broad reading of Art. 11 Mandate for Palestine. As far as the concept of diplomatic protection is concerned, later practice clearly followed the majority judgment. When it comes to the application of the law to the facts in the present case, however, one might be inclined to follow the dissenting judges.

Date: 2016-04-22; view: 572