Beruflich Dokumente
Kultur Dokumente
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A. Factual Background and History of Proceedings
1 On 27 January 1914, the Ottoman authorities granted Mavrommatis, a Greek
national, concessionsrelating to an electric tramway system, the supply of electric light and
power and of drinking water in the city of Jerusalem. 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 with preliminary
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 Mavrommatisjudgment of 1927 the PCIJ declared this new application inadmissible (see
Sec. D below).
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 word contrôle 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 1920which 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.
12 Outside its jurisdiction under Art. 26 Mandate for Palestine, but under an informal agreement
reached by the parties during the proceedings, the PCIJ then decided on the provisions of
Protocol XII to the Lausanne Peace Treaty being applicable to the Mavrommatis concessions.
While Art. 4 Protocol XII to the Lausanne Peace Treaty provided that concessions should be put
into conformity with the new economic conditions by agreement, Art. 6 Protocol XII to the
Lausanne Peace Treaty provided for an exception for concession contracts that had not ‘begun
to be put into operation’. In interpreting Art. 6 Protocol XII to the Lausanne Peace Treaty, the
PCIJ relied, inter alia, on the drafting history of the French version where the initial
formula commencement d’exécution had been replaced by the wider formula commencement
d’application. The PCIJ concluded that putting a contract into operation referred not only to the
beginning of works but also to preliminary actions foreseen in the concession contract, such as
the submission of plans and designs of the works to be carried out, which Mavrommatis had
undertaken in 1914. The concessions therefore had to be readapted according to Art. 4 Protocol
XII to the Lausanne Peace Treaty. In order to confirm this result, the PCIJ elaborated that Art. 6
Protocol XII to the Lausanne Peace Treaty was an exception which had to be strictly construed.
15 The second Mavrommatis judgment has gained a certain importance for the determination
of a relevant error within the meaning of Art. 48 VCLT, even though the Court was only
concerned with the validity of a concession under national law and under general principles of
law. Moreover, this judgment is still cited as a rare example of forum prorogatum. The third
judgment is of less importance.