caseName: Haya de la Torre (Colombia v. Peru)

procedure: (including the text of the declaration of judge ad hoc Alayza y Paz Soldán)

reportsCitation: I.C.J. Reports 1951, p. 71

title: Judgment of 13 June 1951

text: INTERNATIONAL COURT O F JUSTICE

text: June 13th

text: YEAR 1951

text: General List :

text: NO. 14

text: June q t h , 1951

text: HAYA DE LA TORRE CASE

text: (COLOMBTA / PERU)

text: Diplomatic a s y l u m .

text: Intervention u n d e r Article 63 of the Statute a n d Article 66 of Rules.

text: -Admissibility of intervention.-Its limits. Jurisdiction based o n attitude of Parties.-Manner of carrying out Judgment of November z o t h , 1950.-Choice between various means.- Judicial function of Court. Res judicata.-Provisional character of diplomatie asylum.-Methods of terminating a s y l u m under H a v a n a Convention o n A s y l u m of 1928. -No surrender of political oiJenders to territorial authorities.

text: Character and legal consequences of Judgment of November zoth, 1950. - T e r m i n a t i o n of a s y l u m .

text: JUDGMENT

text: Present : President BASDEVANT ; Vice-President GUERRERO ; Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, READ, HSU MO ; MM. ALAYZA Y PAZ SOLDAN and CAICEDO CASTILLA, Judges a d hoc ; Registrar HAMBRO.

text: I n the Haya de la Torre case,

text: the Republic of Colombia, represented by : M. José Gabriel de la Vega, Envoy Extraordinary and Minister Plenipotentiary of Colombia to The Netherlands, as Agent, assisted by M. Camilo de Brigard, Ambassador, Professor of International Law, former Member of the Advisory Committee of the Colombian Ministry for Foreign Affairs, as Counsel,

text: and

text: the Republic of Peru, represented by : M. Felipe Tudela y Barreda, Advocate, Professor of Constitutional Law at Lima, as Agent, assisted by M. Fernando Morales Macedo R., Parliamentary Interpreter, M. Juan José Calle y Calle, Secretary of Embassy, and, as Counsel : M. Gilbert Gidel, Professor of the Faculty of Law of the University of Paris, M. - Julio L6pez Olivkn, Ambassador, with, as intervening Party, the Republic of Cuba, represented by : Mme. Flora Diaz Parrado, Chargé d'Affaires of the Republic of Cuba at The Hague, as Agent,

text: composed as above, delivers the following Judgment :

text: On December 13th, 1950, the Government of Colombia filed in the Registry of the Court an Application which referred to the Judgments given by the Court on November zoth, 1950, in the Asylum Case, and on November 27th upon the Request for the Interpretation of that Judgment. After stating that Colombiaand Peru were unable to come to an agreement on the manner in which effect should be given to the said Judgments as regards the surrender of the refugee Victor Rad1 Haya de la Torre, the Application made a request to the Court in the following terms : " ( a ) P R I N C I P A L CLAIM : Requests the Court to adjudge and declare, whether the Government of the Republic of Peru enters an appearance or not, after such time-limits as the Court may fix in the absence of an agreement between the Parties : In pursuance of the provisions of Article 7 of the Protocol of Friendship and Co-operation between the Republic of Colombia and the Republic of Peru signed on May zdth, 1934, to determine the manner in which effect shall be given to the Judgment of November zoth, 1950 ; And, furthermore, to state in this connection, particularly : Whether Colombia is, or is not, bound to deliver to the Govemment of Pem M. Victor Raul Haya de la Torre, a refugee in the Colombian Embassy at Lima."

text: " ( 6 ) ALTERNATIVE CLAIM : In the event of the above-mentioned claim being dismissed, May it please the Court, in the exercise of its ordinary competence, whether the Government of Pem enters an appearance or not, and after such time-limits as the Court may fix in the absence of an agreement between the Parties, to adjudge and declare whether, in accordance with the law in force between the Parties and particularly American international law, the Government of Colombia is, or is not, bound to deliver M. Victor Raul Haya de la Torre to the Government of Peru."

text: The Application was accompanied by a certified true French translation of Article 7 of the Protocol of Friendship and Cooperation between the Governments of Colombia and Peru signed a t Rio de Janeiro, May 24th, 1934, and also of two notes exchanged between those two Governments. Notice of the Application was given under Article 40, paragraph 3, of the Statute of the Court to Members of the United Nations through the Secretary-General, and also to the other States entitled to appear before the Court. I t was also transmitted to the Secretary-General of the United Nations. At the suggestion of the Parties, the written proceedings were limited to the submission of a memorial and a counter-memorial, and these pleadings were filed within the time-limits prescribed in the Order of January 3rd, 1951. As the Court did not include upon the Bench any judges of the nationality of the Parties, they availed themselves of the right provided by Article 31, paragraph 3, of the Statute. The Judges ad hoc chosen were M. José Joaquin Caicedo Castilla, Doctor of Law, Professor, former Deputy and former President of the Senate, Ambassador, for the Government of Colombia, and M. Luis Alayza y Paz Soldan, Doctor of Law, Professor, former Minister, Ambassador, for the Government of Peru. By a letter dated January zznd, 1951, the Colombian Agent informed the Registrar that his Government relied on the Convention on Asylum signed a t Havana on February zoth, 1928 ; he requested the Registrar to give effect to the provisions of Article 63 of the Statute. Accordingly, the Registrar informed the States

text: 6 which were parties to that Convention, other than those concerned i n the case, of this fact. The Minister of State of Cuba on February 15th, 1951, addressed t o the Registrar, in reply, a letter and a Memorandum which contained the views of his Government concerning the construction of the Convention of Havana of 1928, as well as this Government's general attitude in regard to asylum.

text: This letter, considered as a Declaration of Intervention under Article 66, paragraph 1, of the Rules of Court, was, in accordance with paragraphs 2 and 3 of that Article, communicated to the Parties in the case and to the Members of the United Nations and other States entitled to appear before the Court. The Memorandum annexed to that letter was a t the same time communicated to the Parties. The pleadings and documents annexed had already been placed a t the disposal of the Government of Cuba, a t the request of that Government and with the consent of the Parties. On March 28th, 1951, the Agent of the Government of Colombia stated that he did not raise any objection to the intervention of Cuba. On April znd, 1951, the Agent of the Government of Peru addressed a letter to the Registrar in which he requested the Court to decide that the intervention was not admissible. I n application of Article 66, paragraph 2, of the Rules of Court, the Court decided to hear the observations of the Agents of the Parties and of the Government of Cuba on the admissibility of that Government's intervention before the argument on the merits. A public hearing was held for that purpose on May 15th, 1951, during which the Court heard statements submitted on behalf of the Government of Peru by M. Felipe Tudela y Barreda, Agent, and M. G. Gidel, Counsel ; on behalf of the Government of Colombia by M. Camilo de Brigard, Counsel ; and on behalf of the Govemment of Cuba by Mme. Flora Diaz Parrado, Agent. At this public hearing the following Submissions relating to the Request for Intervention were presented to the Court :

text: On behalf of the Government of Peru : "May it please the Court to adjudge : that the present case cannot give rise to the construction of a convention within the meaning of Article 63 of the Statute of the Court, and in particular of the Havana Convention, concerning the meaning of which the Court gave judgment on November zoth, 1950 ; and that, therefore, the intervention of the Government of Cuba is not admissible." On behalf of the Government of Colombia : "May it please the Court to decide that the Government of Cuba is entitled to intervene in the present case." 7

text: On behalf of the Government of Cuba: "May it please the Court to declare that the request to intervene is admissible." On May 16th, 1951, the Court decided, for the reasons which are stated below, t o admit the intervention of the Government of Cuba a n d t o open immediately the oral proceedings on the merits of the case. I n the course of public hearings held on May 16th and 17th, 1951, the Court heard statements b y M. José Gabriel de la Vega, Agent, on behalf of the Government of Colombia, and b y M. G. Gidel, Counsel, on behalf of the Government of Peru ; furthermore, in accordance with Article 66, paragraph 5, of the Rules of Court, i t heard a statement on the interpretation of the Havana Convention, presented on behalf of the Government of Cuba b y Mme. Flora Diaz Parrado, Agent. Ar the end of the written proceedings, the Parties presented the following Submissions :

text: On behalf of the Government of Colombia (Submissions in the Memorial) : "May it please the Court, To state in what manner the Judgment of November zoth, 1950, shall be executed by Colombia and Peru, and furthermore, to adjudge and declare that Colombia is not bound, in execution of the said Judgment of November zoth, 1950, to deliver M. Victor Raul Haya de la Torre to the Peruvian authorities. In the event of the Court not delivering judgment on the foregoing Submission, may it please the Court to adjudge and declare, in the exercise of its ordinary competence, that Colombia is not bound to deliver the politically accused M. Victor Rad1 Haya de la Torre to the Peruvian authonties."

text: On behalf of the Government of Peru (Submissions in the Counter- Memorial) : "May it please the Court, 1. To state in what manner the Judgment of November zoth, 1950, shall be executed by Colombia ; II. To dismiss the Submissions of Colombia by which the Court is asked to state solely ["sans plus"] that Colombia 1s not bound to deliver Victor Raul Haya de la Torre to the Peruvian authorities ; III. In the event of the Court not delivering judgment on Submission No. 1, to adjudge and declare that the asylum granted to SeÏior Victor Raul Haya de la Torre on January 3rd, 1949, and maintained since that date, having been judged to be contrary to Article 2, paragraph 2, of the Havana Convention of 1928, ought to have ceased immediately after the delivery of the Judgment of November zoth, 1950, and must in any case cease forthwith in order that Peruvian justice may resume its normal course which has been suspended." 8

text: I n the course of his oral statement on May 16th, 1951, the Agent of the Govemment of Colombia re-stated the Submissions of the Memorial with the following addition relating to the Submissions of the Co'unter-Memonal of Peru :

text: "To state in what manner the Judgment of November zoth, 1950, shall be executed by Colombia, when stating, in accordance with the frrst point of Our principal claim, 'in what manner the Judgment of November zoth, 1950, shall be executed by Colombia and Peru' ; On Submission I I of the same Counter-Memorial : To reject it ; And, should occasion arise, to reject Submission III of the said Counter-Memorial."

text: On the other hand, Counsel for the Government of Peru requested the Court to decide in its favour upon the Submissions set out in its Counter-Memorial. Finally, the Agent of the Govemment of Cuba presented her Government's interpretation of the Havana Convention so far as concerns the surrender of the refugee to the Peruvian authorities.

text: The Government of Cuba, availing itself of the right which Article 63 of the Statute of the Court confers on States parties t o a convention, filed a Declaration of Intervention with the Registry on March 13th, 1951, and attached thereto a Memorandum in which it stated its views in regard t o the interpretation of the Havana Convention of 1928 ratified by it and also its general attitude towards asylum. The Court considered that this Memorandum was regarded b y the Govemment of Cuba as constituting the written observations provided for in paragraph 4 of Article 66 of the Rules of Court. The Government of Peru contended that the intervention of the Government of Cuba was inadmissible, owing to the Declaration of Intervention being out of time, and to the fact that the Declaration and the Memorandum accompanying it did not constitute an intervention in the true meaning of the term, but an attempt by a third State to appeal against the Judgment delivered by the Court on November zoth, 1950. I n regard to that question, the Court observes that every intervention is incidental to the proceedings in a case ; it follows that a declaration filed as an intervention only acquires 'that character, in law, if it actually relates to the subject-matter of the pending proceedings. The subject-matter of the present case differs from that of the case which was terminated by the Judgment of November zoth, 1950 : i t concerns a question-the surrender of Haya de la Torre to the Peruvian authonties-which in the previous case was completely outside the Submissions of the Parties, and which was in consequence in no way decided by the abovementioned Judgment. I n these circumstances, the only point which it is necessary to ascertain is whether the object of the intervention of the Government of Cuba is in fact the interpretation of the Havana Convention in regard to the question whether Colombia is under an obligation to surrender the refugee to the Peruvian authorities. On that point, the Court observes that the Memorandum attached to the Declaration of Intervention of the Government of Cuba is devoted almost entirely to a discussion of the questions which the Judgment of November zoth, 1950, had already decided with the authority of res judicata, and that, to that extent, it does not satisfy the conditions of a genuine intervention. However, a t the public hearing on May 15th, 1951, the Agent of the Government of Cuba stated that the intervention was based on the fact that the Court was required to interpret a new aspect of the Havana Convention, an aspect which the Court had not been called on to consider in its Judgment of November zoth, 1950. Reduced in this way, and operating within these limits, the intervention of the Government of Cuba conformed to the conditions of Article 63 of the Statute, and the Court, having deliberated on the matter, decided on May 16th to admit the intervention in pursuance of paragraph 2 of Article 66 of the Rules of Court.

text: I n its Judgment of November zoth, 1950, the Court defined the legal relations between Colombia and Peru with regard to matters referred to it by them relating to diplomatic asylum in general and particularly to the asylum granted to Victor Ra61 Haya de la Torre by the Ambassador of Colombia in Lima on January 3rd-4th, 1949. On the day of the delivery of this Judgment the Government of Colombia submitted to the Court a Request for Interpretation, which by the Judgment of November 27th, 1950, uras declared to be inadmissible. On the following day, the Minister for Foreign Affairs and Public Worship of Peru, relying on the Judgment of November zoth, addressed a note to the Chargé d'Affaires of Columbia a t Lima, stating in particular :

text: "The moment has come to carry out the Judgment delivered by the International Court of Justice by terminating the protection which that Embassy is improperly granting to Victor Raul Haya de la Torre. I t is no longer possible further to prolong an asylum which is being maintained in open contradiction to the Judgment which has been delivered. The Colombian Embassy cannot continue to protect the refugee, thus barring the action of the national courts.

text: You must take the necessary steps, Sir, with a view to terminating this protection, which is being improperly granted, by delivering the refugee Victor R a d Haya de la Torre, so that he may be placed at the disposal of the examining magistrate who summoned him to appear for judgment, in accordance with what 1 have recited above."

text: I n a Note dated December 6th, 1950, addressed to the Minister for Foreign Affairs and Public Worship of Peru, the Minister for Foreign Affairs of Colombia refused t o comply with this request ; he relied in particular on the following considerations :

text: "Consequently, the Court formally rejected the complaint made against the Government of Colombia in the counter-claim of the Government of Peru, namely, that it had granted asylum to persons accused of or condemned for common crimes. Should Colombia proceed to the delivery of the refugee, as requested by Your Excellency, [it] would not only disregard the Judgment to which we are now referring, but would also violate Article 1, paragraph 2, of the Havana Convention which provides that : ' Persons accused of or condemned for common crimes taking refuge in a legation shall be surrendered upon request of the locaI government.' "

text: These are the circumstances giving rise to the present case which has been brought before the Court by the Government of Colombia by Application of December 13th, 1950. The Parties have in the present case consented to the jurisdiction of the Court. Al1 the questions submitted to it have been argued by them on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court.

text: I n the first part of its principal Submission the Government of Colombia requests the Court

text: On the other hand, the Government of Peru in its first Submission requests the Court

text: "to state in what manner the Judgment of November zoth, 1950, shall be executed by Colombia".

text: These Submissions are both designed to obtain a decision from the Court as to the manner in which the asylum should be terminated. The portion of the Judgment of November zoth, 1950, to which they refer is the passage where, in pronouncing on the question of the regularity of the asylum, it declares that the grant of

text: asylum was not made in conformity with Article 2, paragraph 2 ("First"), of the Havana Convention on Asylum of 1928. The Court observes that the Judgment confined itself, in this connection, to defining the legal relations which the Havana Convention had established between the Parties. It did not give any directions to the Parties, and entails for them only the obligation of compliance therewith. The interrogative form in *hich they have formulated their Submissions shows that they desire that the Court should make a choice amongst the various courses by which the asylum may be terminated. But these courses are conditioned by facts and by possibilities which, to a very large extent, the Parties are alone in a position to appreciate. A choice amongst them could not be based on legal considerations, but only on considerations of practicability or of political expediency ; it is not part of the Court's judicial function to make such a choice. In the second part of its principal Submission, the Government of Colombia requests the Court "to adjudge and declare that Colombia is not bound, in execution of the said Judgment of November zoth, 1950, to deliver M. Victor Raul Haya de la Torre to the Peruvian authorities".

text: This part of the principal Submission of Colombia is strictly limited by the words "in execution of the said Judgment of November 2oth, 1950". These words serve to confine the request thus formulated, as in the first part of the same Submission, to the execution of the Judgment of November zoth, 1950. As was stated both in that Judgment and in the Judgment of November 27th, 1950, the Government of Peru had not demanded the surrender of the refugee. This question was not submitted to the Court and consequently was not decided by it. I t is not therefore possible to deduce from the Judgment of November zoth any conclusion as to the existence or non-existence of an obligation to surrender the refugee. I n these circumstances, the Court is not in a position to state, merely on the basis of the Judgment of November zoth, whether Colombia is or is not bound to surrender the refugee to the Peruvian authorities. For these reasons, the Court cannot give effect to the abovementioned Submissions. The alternative Submission of the Government of Colombia is as follows :

text: "In the event of the Court not delivering judgment on the foregoing Submission, may it please the Court to adjudge and declare, in the exercise of its ordinary competence, that Colombia is not bound to deliver the politically accused M. Victor R a d Haya de la Torre to the Peruvian authorities."

text: I n its second Submission the Government of Peru requests the Court

text: HAYA DE LA TORRE CASE (JUDGMENT O F 13 VI 51) 80 "to dismiss the Submissions of Colombia by which the Court is asked to state solely ("sans plus") that Colombia is not bound to deliver Victor Raul Haya de la Torre to the Peruvian authorities". The Government of Peru states in this Submission that the Court is asked by the Submissions of Colombia "to state solely that Colomthe Govemment of Peru wishes to convey that the legal position which the Judgment of November 20th created for it must in any case be preserved ; it refers thus to the statement set forth in its third Submission, which will be examined later. As mentioned above, the question of the surrender of the refugee was not decided by the Judgment of November 20th. This question is new ; it was raised b y Peru in its Note to Colombia of November 28th, 1950, and was submitted to the Court by the Application of Colombia of December 13th, 1950. There is consequently no res judicata upon the question of surrender. According to the Havana Convention, diplomatic asylum is a provisional measure for the temporary protection of political offenders. Even if regularly granted it cannot be prolonged indefinitely, but must be terminated as soon as possible. I t can, according to Article 2, paragraph 2, only be granted "for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety". The Court finds that the Convention does not give a complete answer to the question of the manner in which an asylum shall be terminated. As to persons accused of or condemned for common crimes who seek refuge, Article I prescribes that they shall be surrendered upon request of the local government. For "political offenders" another method of terminating asylum is prescribed, namely, the grant of a safe-conduct for the departure from the country. But, under the terms of the Judgment of November zoth, a safe-conduct can only be claimed under the Havana Convention if the asylum has been regularly granted and maintained and if the territorial State has required that the refugee should be sent out of the country. For cases in which the asylum has not been regularly granted or maintained, no provision is made as to the method of termination. Nor is any provision made in this matter in cases where the territorial State has not requested the departure of the refugee. Thus, though the Convention prescribes that the duration of the asylum shall

text: the question how the asylum should be terminated in a variety of different situations. As the Court pointed out in its Judgment of November zoth, the Havana Convention, the first article of which requires that perçons accused of or condemned for common crimes shall be surrendered to the territorial authorities, does not contain any

text: similar provision in regard to political offenders. This silence cannot be interpreted as imposing an obligation to surrender the refugee in case the asylum was granted to him contrary to the provisions of Article 2 of the Convention. Such an interpretation would be repugnant to the spirit which animated that Convention in conformity with the Latin-American tradition in regard to asylum, a tradition in accordance with which political refugees should not be surrendered. There is nothing in that tradition to indicate that an exception should be made where asylum has been irregularly granted. If it has been intended to abandon that tradition, an express provision to that effect would have been needed, and the Havana Convention contains no such provision. The silence of the Convention implies that it was intended to leave the adjustment of the consequences of this situation to decisions inspired by considerations of convenience or of simple political expediency. To infer from this silence that there is an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rôle of these extra-legal factors in the development of asylum in Latin America, and the spirit of the Havana Convention itself. I n its Judgment of November 20th the Court pointed out that, in principle, asylum cannot be opposed to the operation of justice. The safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country, whereas it is his duty t o respect them. The Court further said that it could not admit that the States signatories to the Havana Convention intended t o substitute for the practice of the Latin-American republics a legal system which would guarantee to their own nationals accused of political offences the privilege of evading national jurisdiction. But it would be an entirely different thing to Say that the State granting an irregular asylum is obliged to surrender the refugee to the local authorities. Such an obligation to render positive assistance to these authorities in their prosecution of a political refugee would far exceed the above-mentioned findings of the Court and could not be recognized without an express provision to that effect in the Convention. Thus, the Havana Convention does not justify the view that the obligation incumbent on a State to terminate an asylum irregularly granted to a political offender, imposes a duty upon that State to surrender the person to whom asylum has been granted. I n its Judgment of November 20th the Court, in examining whether the asylum was regularly granted, found that the Government of Peru had not proved that the acts of which Haya de la Torre was accused, before asylum was granted to him, constituted

text: 14 common crimes. Moreover, when the Court considered the provisions of Article 2, paragraph 2, relating to political offenders, it held, on the basis of these provisions, that the asylum had not been granted in conformity with the Convention. I t follows from these considerations that, so far as the question of surrender is concerned, the refugee must be treated as a person accused of a political offence. The Court has, consequently, arrived a t the conclusion that the Government of Colombia is under no obligation to surrender Haya de la Torre to the Peruvian authorities. The third Submission of the Government of Peru is as follows :

text: "In the event of the Court not delivering judgment on Submission No. 1, to adjudge and declare that the asylum granted to Sefior Victor Raul Haya de la Torre on January 3rd, 1949, and maintained since that date, having been judged to be contrary to Article 2, paragraph 2, of the Havana Convention of 1928, it ought to have ceased immediately after the delivery of the Judgment of November zoth, 1950, and must in any case cease forthwith, in order that Peruvian justice may resume its normal course which has been suspended."

text: The Government of Colombia has requested the Court to reject this Submission. I n its Judgment of November zoth, the Court held that the grant of asylum by the Government . of Colombia to Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of the Convention. This decision entails a legal consequence, namely that of putting an end to an illegal situation : the Government of Colombia which had granted the asylum irregularly is bound to terminate it. As the asylum is still being maintained, the Govemment of Peru is legally entitled to claim that it should cease. But the latter Government adds in its Submission a demand that the asylum should cease "in order that Peruvian justice may resume its normal course which has been suspended". This addition appears to involve, indirectly, a claim for the surrender of the refugee. For the reasons given above, this part of the Submission of the Government of Peru cannot be accepted.

text: The Court has thus arrived a t the conclusion that the asylum must cease, but that the Government of Colombia is under no obligation to bring this about by surrendering the refugee to the Peruvian authorities. There is no contradiction between these two findings, since surrender is not the only way of terminating asylum.

text: Having thus defined in accordance with the Havana Convention the legal relations between the Parties with regard to the matters referred to it, the Court has completed its task. I t is unable to give any practical advice as to the various courses which might be followed with a view to teminating the asylum, since, by doing so, it would depart from its judicial function. But it can be assumed that the Parties, now that their mutual legal relations have been made clear, will be able to find a practical and satisfactory solution by seeking guidance from those considerations of courtesy and good-neighbourliness which, in matters of asylum, have always held a prominent place in the relations between the Latin-American republics.

text: For these reasons,

text: on the principal Submission of the Government of Colombia and the first Submission of the Government of Peru, unanimously, finds that it cannot give effect to these Submissions and consequently rejects them ;

text: on the alternative Submission of the Government of Colombia and the second Submission of the Government of Peru, by thirteen votes to one,

text: finds that Colombia is under no obligation to surrender Victor Ratil Haya de la Torre to the Peruvian authorities ;

text: on the third Submission of the Government of Peru, unanimously,

text: finds that the asylum granted to Victor Ratil Haya de la Torre on January 3rd-4th, 1949, and maintained since that time, ought to have ceased after the delivery of the Judgment of November zoth, 1950, and should terminate.

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this thirteenth day of June, one thousand nine hundred. and fifty-one, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Colombia, to the Government of the Republic of Peru and to the Government of the Republic of Cuba, respectively.

text: ( S i g n e d ) BASDEVANT, President .

text: ( S i g n e d ) E. HAMBRO, Registrar.

text: M. ALAYZA Y PAZ SOLDAN, Judge ad hoc, declares that if the Court had stated under the second point of the operative clause that Colombia was under no obligation, as the sole means of executing the Judgment, to surrender the refugee to the Government of Peru, he would have been in a position to concur in the opinion of the majority of the Court. But the brevity of the sentence employed, which may be misunderstood, prevents him from concurring in the .opinion of the Court as a whole.

text: ( I n i t i a l l e d ) J. B. (Initialled) E. H.

title: Haya de la Torre (Colombia v. Peru)


court: icj

doctype: dom

caseName: Ambatielos (Greece v. United Kingdom)

decisionType: judgment

procedure: Preliminary Objection (including the text of the declaration of Judge Alvarez)

publisher: International Court of Justice

title: Judgment of 1 July 1952

text: I N T E R N A T I O N A L COURT O F JUSTICE

type: rubrik

text: J u l y 1st General List : YEAR 1952

type: stycke

text: NO. 15

text: AMBATIELOS CASE

text: (GREECE v. UNITED KINGDOM)

text: PRELIMINARY OBJECTION

text: A n a l y s i s o f the S u b m i s s i o n . ~ of the Parties. to define the issues before the C'oîirt.-Conditions proposed for the conferring of juvisdiction o n the Court a s Coinnzission of Arbitration : unequivocal agreement of the O n ~ t i r s . - ~ V o retroartive operation of a treaty vhere no provision to this etfrrt and no spceial reason.-Relation between the Declaration of , J u l y 161h, 1926, a n d the T r ~ a t y of the same date; external and interîzal rvidencc o f the d l of the contvacting Parties ivh this connection : s a m e si,nnalovirs, rniification of the 7i1hole by each of the parties, registration o f the ~,,l~ciie rC,itll fhc 7,eague of lVations, chavacter of the L)eclaration a s i n t r r ~ v r t a t i 7 ~ provision.-lVo possibility of conflict between the decision of the Cozivt and that of the C o m m i s s i o n of Avbitvation.-Distinction between claims formzilated b ~ f o r e , a n d those not formulated before a certain date not warranted b y the terms of the Dec1avation.-Interpvetation of tveaty provisions resulting i n certain categories of disputes remaining without m e a n s O! solution : contrary desire of the Parties.

text: Present : Vice- President GUERRERO, Acting President ; President Sir Arnold MCNAIR ; judges ALVAREZ, BASDEVANT, HACKWORTH, WINIARSKI, ZORIEI~, KLAESTAD, BADAWI PASHA, READ, HSU MO, LEVI CARNEIRO, Sir Benegal RAU, ARMAND-UGON ; M. SPIROPOULOS, judge ad hoc ; Registrar HAMBRO.

text: I n the Ambatielos case,

text: between

text: the United Kingdom of Great Rritain and Northern Ireland, represented by : Mr. V. J. Evans, Assistant Legal Adviser of the Foreign Office,

text: as Agent, assisted by : Sir Eric Beckett, K.C.M.G., Q.C., Legal Adviçer of the Foreign Office, Rlr. D. H. K. Johnson, Assistant Legal Adviser of the Foreign Office, Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar, as Counsel,

text: and

text: the Kingdom oi Greece, represented by : 31. N. G. Lély, Envoy Extraordinary and Minister Plenipotentiary of H.M. the King of the Hellenes in the Netherlands,

text: assisted by : The Right Honourable Sir Hartley Shawcross, Q.C., M.P., former Attorney-General of the United Kingdom, Mr. C. J. Colombes, Q.C., LL.D., llember of the English Bar, M. Henri Rolin, Professor of International Law at Brussels University, former President of the Belgian Senate, RI. Jason Stavropoulos, Legal Adviser of the Ministry for Foreign Affairs, as Counsel,

text: composed as above, adjudicating on the Preliminary Objection of the Government of the United Kingdom, delivers the following Jzcdgment : 8

text: JUDGMENT OF I VII 52 (AMBATIELOS CASE)

text: 30 On April gth, 1951, the Greek Minister in the Netherlands, duly authorized b y his Governnient, filed in the Registry a n Application instituting proceedings before the Court against the United Kingdom of Great Britain and Northern Ireland concerning the claim relating t o the rights of a Greek shipowner, Nicolas Eustache Ambatielos, alleged t o have suffered considerable loss in consequence of a contract which he concluded in 1919 with the Government of the United Kingdom (represented by the Ministry of Shipping) for the purchase of nine steamships which were then under construction, and in consequence of certain adverse judicial decisions in the English Courts in connection therewith. The Hellenic Application refers t o the Treaty of Commerce and Navigation between Greece and Great Britain, signed a t Athens on November ~ o t h , 1886, and t o the Treaty of Commerce a n d Navigation between the same Contracting Parties signed a t London on July 16th, 1926, including the Declaration. The Application requests the Court :

text: "To declare that it has jurisdiction :

text: 1. That the arbitral procedure referred to in the Final Protocol of the Treaty of 1886 must receive application in the present case ; 2 . That the Commission of Arbitration provided for in the said Protocol shall be constituted within a reasonable period, to be fixed by the Court". Pursuant t o Article 40, paragraphs 2 and 3, of the Statute, the Application was iiotified t o the Government of the United Kingdom and'to the States entitled to appear before the Court. I t was also transmitted t o the Secretary-General of the United Nations. The hlemorial ~f the Hellenic Government was filed within the time-limit prescribed by Order of May 18th, 1951, and later extended by Order of July 3oth, 1951. I t sets out the following Submissions :

text: declare : (1) That the United Kingdom Government is under an obligation to agree to refer its present dispute with the Hellenic Government to arbitration, and to carry out the Judgment which will be delivered ; (2) that the arbitral procedure instituted by the Protocol of the Greco-British Treaty of Commerce and Navigation of 1886, or alternatively, that of the Treaty of Commerce of 1926, must be applied in this case ; (3) that any refusal by the United Kingdom Government to accept the arbitration provided for in those Treaties would constitute a denial of justice (Anglo-Iranian Oz1 Company case, Order of July 5th, 1951 : I.C.J. Reports, 1951, p. 89) ; (4) that the Hellenic Government is entitled to seise the Court of the merits of the dispute between the two Governments without 9

text: JUDGMENT OF 1 VIX 52 (AMBATIELOS CASE) 31 even k i n g bound to resort beforehand to the arbitration mentioned unzer submissions I and 2 above ; ( 5 ) alternatively, that the United dom Government is under an obligation, as a Member of the United Nations, to conform to the provisions of Article 1, paragraph I, of the Charter of the United Nations, one of whose principal purposes is : 'to bring about by peaceful means, and in conformity with the princip!es of justice and international law, adjustment or settleinent of international disputes or situations', and to those of Article 36, paragraph 3, of the Charter, according to which 'legal disputes should, as a general rule, be referred by the Parties to the International Court of Justice'. There is no doubt that the dispute between the Hellenic Govemment and the United Kingdom Govemment is a legal dispute susceptible of adjudication by the Court."

text: On February gth, 1952, within the time-!imit prescribed by Order of July 3oth, and later extended b y Orders of November gth, 1951, and January r6th, 1952, the Government of the United Kingdom filed a Counter-Memorial in which, whilst setting out its arguments and submissions on the merits of the case, i t contended that the Court lacked jurisdiction, expressly presenting this contention as a Preiiminary Objection under Article 62 of the Rules of Court. As regards jurisdiction, the Counter-Memorial requests the Court t o adjudge and declare that it has no jurisdiction :

text: " ( a ) to entertain a request by the Hellenic Govemment that it should order the United Kingdom Government to submit to arbitration a claim b the Hellenic Government based on Article XV or any otler Article of the Treaty of 1886 ;

text: or ( b ) itself to decide on the merits of such a claim",

text: and that, likewise, it has no jurisdiction : " ( a ) to entertain a request by the Hellenic Govemment that i t should order the United Kingdom Govemment to submit to arbitration a claim by the Hellenic Government for denial of justice based on the general principles of international law or for unjust enrichment, or

text: ( b ) itself to decide upon the merits of such a claim."

text: The filing of the Preliminary Objection having suspended proceedings on the merits, a time-limit was prescribed b y Order of February 14th, 1952, for the presentation b y the Hellenic Government of a written statement of its Observations and Submissions on the Objection. Furthermore, the States entitled t o appear before the Court were informed of the deposit of the Objection.

text: T h e Observations a n d Submissions of t h e Hellenic Government were fiied o n April 4 t h , 1952. They contain t h e following Siibmissions :

text: to dismiss the Objection to the jurisdiction lodged by the British Government and, adjudicating upon the Submissions relating to the competence of the Court, formulated in the Application instituting proceedings and hereinafter clarified : 1. i n the first place, to hold that the United Kingdom Government is bound to accept the submission to the International Court of Justice, Sitting as an arbitral tribunal, of the dispute now existing between that Government and the Hellenic Government, and accordingly to fix time-limits for the filing by the Parties of the Keply and the Rejoinder dealing with the merits of the dispute ; 2 . alternatively, to authorize the British Government to notify to the Greek Government, within the time-limit of one month, its preference, if any, for the submission of the dispute to the decision of a Commission of Arbitration as provided for in the Protocol of 1886, it being understood that in the event of a failure by the British Government to exercise this option within the time-limit laid down, the proceedings on the merits will bc resumed before the Court, the President of which, upon the Application of the Hellenic Government, shall fix time-limits for the filing of the Keply and the Rejoinder ; 3. iîz the further alternative, to direct the Parties to put into execution the procedure for a Commission of hrbitration as provided for by the Protocol of 1886 ; 4. in the final alternative, if the Court should hold that it cannot decide as to its competence without further information as to t h e merits, by application of Article 62 of the Rules, to join the Objection to the merits."

text: After t h e deposit of the Hellenic Government's Observations a n d Submissions, t h e case was ready for hearing, in so far a s t h e Preliminary Objection was concerned. As t h e Court included upon t h e Bench a judge of t h e nationality of one of t h e Parties, t h e other Party-the Hellenic Government-availed itself of t h e right conferred on i t b y Article 31, paragraph 2 , of t h e S t a t u t e of the Court a n d appointed Professor Jean Spiropoulos t o sit a s judge ad hoc. As t h e President of t h e Court was t h e national of one of t h e Parties, he transferred t h e Presidency for t h e present case t o t h e Vice-President, in accordance with Article 13, paragraph 1, of t h e Rules of Court. Public hearings were held o n May 15th, 16th a n d 17th, i n t h e course of which t h e Court heard S i r Eric Beckett, Counsel, on behalf of t h e Government of t h e United Kingdom ; a n d M. Lély, Agent, Sir Hartley Shawcross a n d M. Henri Rolin, Counsel, on behalf of t h e Hellenic Government.

text: I n the course of the argument before the Court, the following Submissions were presented :

text: On behalf of the United Kingdom Government :

text: "The formal conclusion of the United Kingdom is that the International Court of Justice has no jurisdiction to deal with the claim brought against the Govemment of the United Kingdom by the Hellenic Govemment in respect of the treatment of M. Ambatielos."

text: On behalf of the Helienic Govemment : "In the light of the Submissions of the Parties : Having regard to Article 29 of the Treaty of Commerce between the United Kingdom and Greece, signed in London on July 16th, 1926, and, in so far as it may be necessary, to the Declaration of the same date, May it please the Court : to record a finding for the Hellenic Government : I. that the complaints formulated by that G o v e m e n t in its Memorial, relating to the breach of the contract of sale of the ships, to the unjust enrichment, to the non-production a t the trial of certain documents of which M. Ambatielos was unaware and to the improper administration of justice (denial of justice stricto sensu), ail have, in the opinion of that Government, a legal foundation in Articles 1, X, XV, paragraph 3, of the Treaty of Commerce and Navigation of November ~ o t h , 1886, and likewise in Articles 1, 3 and 4 of the Treaty of July 16th, 1926, which are in identical or equivalent terms to the first two provisions referred t o above ; 2. that the British Government has, through its Counsel, Sir Eric Beckett, expressed its wiilingness that the Court should undertake the function of arbitration in the event of its holding that it has jurisdiction to decide the question whether the Greek claim should be submitted to arbitration, as provided for by the Protocol annexed to the Treaty of 1886, and in the event of the Court's giving an a5rmative decision on this question. This having been done, for the reasons indicated in the Hellenic Observations and enlarged upon by Counsel ; t o hold that it has jurisdiction to deal with the ments of the Helienic claim, and accordingly to fix time-limits for the filing by the Parties of the Reply and the Rejoinder on the merits ; in the alternative, if the Court should hold that it cannot reach a decision as to its jurisdiction without going into the merits, by application of Article 62 of its Rules, to join the Objection to the merits."

text: JUDGMENT OF I V I I 52 (AMBATIELOS CASE)

text: T h e T r e a t y provisions herein before mentioned a r e a s follows :

text: T r e a t y of Commerce a n d Navigation of November ~ o t h , 1886

text: "Article I

text: There shall be between the dominions and possessions of the two High Contracting Parties reciprocal freedom of commerce and navigation. The subjects of each of the two Parties shall have liberty freely to come, with their ships and cargoes, to al1 places, ports and rivers in the dominions and possessions of the other t o which native subjects generally are or may be permitted t o come, and shall enjoy respectively the same. rights, privileges, liberties, favours, immunities and exemptions in ,matters of commerce and navigation which are or may b e enjoyed by native subjects without having to pay any tax or impost greater than those paid by the same, and they shall be subject to the laws and regulations in force.

text: Article X

text: The Contracting Parties agree that, in al1 matters relating t o commerce and navigation, any privilege, favour, or immunity whatever which either Contracting Party has actually granted or may hereafter grant to the subjects or citizens of any other State shall be extended immediately and unconditionally to t h e subjects or citizens of the other Contracting Party ; it being their intention that the trade and navigation of each country shall b e placed, in al1 respects, by the other on the footing of the mostfavoured nation.

text: Article XV

text: The dwellings, manufactories, warehouses and shops of t h e subjects of each of the Contracting Parties in the dominions and possessions of the other, and al1 premises appertaining thereto destined for purposes of residence or commerce shall be respected. I t shall not be allowable to proceed to make a search of, o r a domiciliary visit to, such dwellings and premises, or to examine and inspect books, papers, or accounts, except under the conditions and with the form prescribed by the laws for subjects of the country. The subjects of each of the two Contracting Parties in t h e dominions and possessions of the other shall have free access t o the Courts of Justice for the prosecution and defence of their rights, without other conditions, restrictions, or taxes beyond those imposed on native subjects, and shall, like them, be a t liberty to employ, in al1 causes, their advocates, attorneys or agents, from among the perçons admitted to the exercise of those professions according to the laws of the country."

text: Protocol of November ~ o t h , 1886 "At the moment of proceeding this day to the signature of the Treaty of Commerce and Navigation between Great Britain

text: 13 and Greece, the Plenipotentiaries of the two High Contracting Parties have declared as follows : Any controversies which may arise respecting the interpretation or the execution of the present Treaty, or the consequences of any violation thereof, shall be submitted, when the means of settling them directly by amicable agreement are exhausted, to the decision of Commissions of Arbitration, and the result of such arbitration shall be binding upon both Governments. The members of such Commissions shall be selected by the two Governments by common consent, failing which each of the Parties shall nominate an Arbitrator, or an equal number of Arbitrators, and the Arbitrators thus appointed shall select an Umpire. The procedure of the Arbitration shall in each case be determined by the Contracting Parties, failing which the Commission of Arbitration shall be itself entitled to determine it beforehand. The undersigned Plenipotentiaries have agreed that this Protocol shall be submitted to the two High Contracting Parties a t the same time as the Treaty, and that when the Treaty is ratified, the agreements contained in the Protocol shall also equaiiy be considered as approved, without the necessity of a further formal ratification."

text: Treaty of Commerce a n d Navigation of July 16th, 1926

text: "Article I

text: There shall be between the terntories of the two Contracting Parties reciprocal freedom of commerce and navigation. The subjects or citizens of each of the two Contracting Parties shall have liberty freely to come, with their ships and cargoes, to al1 places and ports in the territories of the other to which subjects or citizens of that Contracting Party are, or may be, permitted to come, and shall enjoy the same rights, privileges, liberties, favours, immunities and exemptions in matters of commerce and navigation as are, or may be, enjoyed by subjects or citizens of that Contracting Party.

text: Article 3

text: The subjects or citizens of each of the two Contracting Parties in the temtories of the other shall enjoy, in respect of their persons, their property, rights and interest, and in respect of their commerce, industry, profession, occupation, or any other matter, in every way the same treatment and legal protection as the subjects or citizens of that Party or of the most-favoured foreign country, in as far as taxes, rates, customs, imposts, fees which are substantially taxes, and other similar charges are concerned.

text: Article q

text: The two Contracting Parties agree that in al1 matters relating to commerce, navigation and industry and the exercise of professions or occupations, any privileges, favour or immunity which either of the two Contracting Parties has actually granted, or may hereafter grant, to the ships and subjects or citizens of any other foreign country shall be extended, simultaneously and unconditionally, without request and without compensation, to the ships and subjects or citizens of the other, it being their intention that t h e commerce, navigation and industry of each of the two Contracting Parties shall be placed in al1 respects on the footing of the mostfavoured nation.

text: Article 29

text: The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation o r application of any of the provisions of the present Treaty shall, a t the request of either Party, be referred to arbitration.

text: The court of arbitration to which disputes shall be referred shall 6 e the Permanent Court of International Justice a t The Hague, unless in any particular case the two Contracting Parties agree otherwise."

text: neclaration of July 16th, 1926

text: "It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of to-day's date does not prejudice claims on behalf of pnvate persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886, and t h a t any differences which may anse between Our two Govemments as to the validity of such claims shall, a t the request of either Government, be referred to arbitration in accordance with the provisions of the Protocol of November ~ o t h , 1886, annexed to. the said Treaty."

text: The Agents of the Parties have informed the Court that the commercial relations between the United Kingdom a n d Greece were regulated in accordance with the provisions of the Treaty of 1886 until the Treaty of 1926 came into force. Although the Treaty of 1886 was denounced b y Greece in 1919 and 1924, nevertheless, by successive agreements and exchanges of notes, i t was continued in force from time t o time ; in the final exchange of notes, i t was agreed t h a t the provisional modus vivendi by which the Treaty was continued until August p s t , 1926, would lapse on the date on which the Treaty of 1926 came into force. I t is necesçary for the Court a t the outset t o review briefly the Submissions of the Parties a s they were developed during t h e proceedings. I n the Application of the Hellenic Government there were three requests, the first of which was t h a t the Coiirt should declare t h a t it had jurisdiction; the second t h a t the Court shoulddeclare and adjudge t h a t the arbitral procedure referred t o in the Final Protocol of t h e Treaty of 1886 must receive application in the present case; and t h e

text: 1.5 third related to the constitution of the Arbitration Commission. In the Memorial which followed the Application, the request, infer d i a , was that the Court should declare and adjudge that the arbitral

text: procedure aforesaid should receive application, which implies a

text: previous decision that the Court had jurisdiction so to do. I n the Hellenic Government's Observations and Submissions on the United Kingdom Government's Counter-Memorial, the Court was asked to dismiss the United Kingdom Government's Objection to the jurisdiction, and, adjudicating upon the competence of the Court as requested in the Application, to direct the Parties to put into execution the procedure for a Commission of Arbitration as provided for by the Protocol of 1886 (this latter Submission being an alternative to the Submission asking the Court t o hold that the United Kingdom Government is bound t o accept the submission of the difference to this Court acting as a n arbitral tribunal). Finally, at the conclusion of the oral arguments, the Hellenic Government , after reciting inter alia that the United Kingdom Government had, through its Counsel, expressed its willingness that the Court should undertake the function of arbitration upon certain conditions, asked that the Court should hold that i t had jurisdiction t o deal with the merits, or, in the alternative, that i t should join the Objection to the merits. These conditions, as stated by the Hellenic Government in its final Submissions, were, first, that the Court should hold that it had jurisdiction to decide the question whether the claim should be submitted to arbitration under the Protocol of 1886, and secondly, that the Court should actually decide this question in the affirmative. The United Kingdom Government's final Submission is that the Court "has no jurisdiction to deal with the claim brought against the Government of the United Kingdom by the Hellenic Government in respect of the treatment of M. Ambatielos". The Submissions in the Counter-Memorial of the United Kingdom were more detailed. So far as they related to jurisdiction, with which alone the Court is now concerned, they were :

text: (i) That for certain reasons the Court has no jurisdiction "(a) to entertain a request by the Heiienic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Government based on Article XV or any other article of the Treaty of 1886, or, (b) itself to decide on the merits of such a claim."

text: (ii) That for certain reasons, the Court has no jurisdiction "(a) to entertain a request by the Hellenic Government that it should order the United Kingdom Government to submit to arbitration a claim by the Hellenic Govern-

text: 16 ment for denial of justice based on the general principles of international law or for unjust enrichment, or

text: (b) itself to decide upon the merits of such a claim."

text: The brief but comprehensive final Submission obviously includes the jurisdictional objections more particularly set out in the Counter-Memorial. I t is evident from the above surrimary that, apart from the jurisdiction of the Court on the merits; the question of its jurisdiction to decide upon the obligation to submit the difference t o arbitration is implicit in the final Submissions of both Parties.

text: The Hellenic Government's final Submissions refer to an offer of the United Kingdom Govemment (through its Counsel), upon certain conditions, that the Court itself should undertake the. function of arbitration. I t is true that the United Kingdom Govemment has made some such offer, but the conditions attached to i t are not very clear. In paragraph I I I of the Submissions a t the end of the Counter-Memorial, the United Kingdom Government stated that if, contrary to its contentions, the Court should hold that i t had "jurisdiction to order arbitration of a claim by the Hellenic Govemment based on the Treaty of 1886 and that the Hellenic Government is not precluded by lapse of time from submitting any such claim", then the Court should substitute itself for the Commission of Arbitration under the Protocol of 1886 and itself decide al1 relevant issues. This condition does not appear to involve the necessity of examining whether the Ambatielos claim is in truth based on the Treaty of 1886. I t implies that the United Kingdom Government's contention is that the Court has no jurisdiction even where a claim is based on the Treaty. But, during the oral arguments, Counsel said a t one stage that the Court would have jurisdiction to decide whether the United Kingdom had committed a breach of the Declaration of 1926 in regard to the Ambatielos claim if (1) the Declaration was a provision of the Treaty of 1926 and (2) the Helleiiic Government's claim in respect of M. Ambatielos was both a claim based on the Treaty of 1886 and a claim which that Declaration covers. A little later Counsel said :

text: "Before 1 go further, 1 wish to repeat what we have said in the Counter-Memorial, that if, contrary to our contentions, the Court should hold (1) that the Declaration is a provision of the Treaty of 1926, and as such is covered by Article 29, and ( 2 ) that the claim in this case is a claim to which the Declaration applies, and (3) that the claim is one which the United Kingdom is legally obliged to arbitrate, then the United Kingdom is, at any rate to

text: = 7 this extent, in accord with its opponents, that it will, in that

text: event, agree that this Court should itself replace the arbitral tribunal provided for in the 1886 Treaty, and should deal with the merits of the case in the same manner and to the same extent that the arbitral tribunal would have had to deal with them if it had been constituted."

text: These conditions seem to go beyond those in the Counter- Memorial ; for they require, in effect, that the Court should not only find in favour of jurisdiction but should also actually decide that the Ambatielos claim is in fact a claim based on the Treaty of 1886 and that the United Kingdom is legally obliged to submit i t to arbitration. This discrepancy throws some doubt on the existence of any unequivocal agreement between the Parties upon this matter. The Court has, however, no doubt that in the absence of a clear agreement between the Parties in this respect, the Court has no jurisdiction to go into al1 the merits of the present case as a commission of arbitration could do.

text: As regards the reference in the Counter-Memorial to the Heiienic Govemment being precluded by lapse of time froni submitting the present claim, the Court holds that this is a point to be considered with the merits and not a t the present stage.

text: The Court can now proceed to deal with the various arguments put forward by the United Kingdom Govemment in support of its Preliminary Objection to the Court's jurisdiction. Seven main points have been raised, the first two of which are :

text: "(1) The jurisdiction of the Court, if it exists at all, must be

text: derived from Article 29 of the Treaty of 1926. (2) Article 29 of the Treaty of 1926 only confers jurisdiction on the Court to deal with disputes relatin to the interpretation or application of the provisions of the % reaty of 1926 itself."

text: Greece has not accepted the compulsory jurisdiction of the Court under Article 36 (2) of its Statute and therefore can invoke the jurisdiction of the Court only under Article 36 (I), by virtue of a special agreement or the provisions of a treaty. The Hellenic Govemment relies, in the present case, on Article 29 of the Treaty of 1926, read in the light of Article 37 of the Statute of the Court, which in effect provides that al1 references in treaties to the Permanent Court of International Justice must now be construed as references to the International Court of Justice. Article 29 of the Treaty of 1926 between Great Britain and Greece is in the following terms :

text: "The two Contracting Parties agree in principle that any dispute that may arise between them a s to the proper interpretation or

text: 18 application of any of the provisions of the present Treaty s h d , a t the request of either Party, be referred to arbitration.

text: The court of arbitration to which disputes shall be referred shall be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise."

text: I t follows, therefore, that any dispute as t o the interpretation or application of any of the provisions of the Treaty of 1926 is referable by either Party t o this Court. The third and fourth points raised on behali of the United Kingdom Government are that : "(3) The Treaty of 1926 only came into force in July 1926, and none of its provisions are applicable to events which took pIace or acts which were committed before that date. This is so whether or not the 1886 Treaty, which the Treaty of 1926 replaced, contained provisions similar to those of the Treaty of 1926. (4) The acts on which the Greek Government's claim is based took place in 1922 and 1923, and therefore the provisions of the Treaty of 1926 are not applicable to them."

text: These points raise the question of the retroactive operation of the Treaty of 1926 and are intended to meet what was described dunng the hearings as "the similar clauses theory", advanced on behalf of the Hellenic Govemment. The theory is that where in the 1926 Treaty there are substantive provisions similar t o substantive pro\~isions of the 1886 Treaty, then under Article 29 of the 1926 Treaty this Court can adjudicate upon the validity of a claim based on an alleged breach of any of these similar provisions, even if the alleged breach took place wholly before the new treaty came into force. The Court rannot accept this theory for the foliowing reasons :

text: (i) To accept this theory would mean giving retroactive effect t o Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty, which must mean ail the provisions of the Treaty, shall come into force immediately upon ratification. Such a conclusion might have been rebutted if there had been any speciai clause or any special object necessitating retroactive interpretation. There is no such cIause or object in the present case. It is therefore impossible t o hold that any of its provisions must be deemed t o have been in force earlier.

text: I t Ras contended on behalf of the Hellenic Govemment that the arbitral procedure stipulated in Article 29 of the Treaty of 1926 differed from that in the Protocol of 1886 orJy in respect of the tribunal provided for arbitration : under the Treaty of 1926 the arbitral tribunal was t o be the Permanent Court of International

text: Justice, while under the Protocol of 1886 the tribunal was t o be an ad hoc commission of arbitration. This, it was argued, was a procedural variation and in matters of procedure, a t l e s t in English law, the presumption as t o procedural statutes is in favour of retroactive application. Now, whatever may be the position in national law in various countries of the world-a matter which the Court has not thought it necessary to investigate-and without examining whether questions of procedure cover questions of jurisdiction, the Court observes that, in any event, the language of Article 32 of the Treaty of 1926 precludes any retroactive effect being given t o selected provisions of that Treaty.

text: (ii) Accompanying the Treaty of 1926-whether as a part thereof or not is a question which wiii be dealt with later-was a Declaration which provided, in effect, that any differences which might arise as to the validity of claims based on the Treaty of 1886 should be referred, at the request of either Government, to arbitration under the Protocol annexed to the Treaty of 1886. That was the understanding between the Parties. The language of the Declaration makes no distinction between claims based on one class of provisions of the 1886 Treaty and those based on another class ; they are al1 placed on the same footing and differences relating t o their validity are referable to arbitration under the Protocol of 1886. To argue that differences relating to claims based on those of the provisions of the earlier Treaty, which were similar to provisions of the later Treaty, were intended to be referred to arbitration in accordancc with Article 29 of the later Treaty, while differences relating to other claims based on the earlier Treaty were meant t o be arbitrated under the Protocol of the earlier Treaty, introduces a distinction for which the Court sees no justification in the plain language of the Declaration.

text: The fifth point raised on behalf of the United Kingdom Government is that :

text: "The Declaration which was signed at the same time as the Treaty of 1926 was not a part of that Treaty and the provisions of that Declaration are not provisions of that Treaty within the meaning of Article 29."

text: Both Parties agree that this is the most important issue in the case. I n support of the contention that the Declaration is not a part of the Treaty, it is said that the Declaration was signed separately from the Treaty proper, though by the same signatories and on the same day. I t is also pointed out that the Declaration refers to the Treaty not as "this Treaty" or "the present TreatyMwhich would have been the proper mode of reference if the Declaration had been regarded as part of the Treaty-but as "the Treaty 20 already been completed and signed. hloreover, it is urged, the Ilrclaration does not Say that it is to be regarded as a part of the Treaty, presenting in this respect a marked contrast to one of the Declarations annexed t o the Greco-Italian Commercial Treaty of Sovember q t h , 1926, which is followed by two Declarations, one expressed to be an integral part of the Treaty and the other not so expressed, the latter being almost identical in form and purpose with the 1926 Anglo-Greek Declaration with which the Court is now concerned.

text: On the other hand, it is to be noted that the Plenipotentiaries incliided the Treaty and the Customs Schedule (which is unquestionably a part of the Treaty) and the Declaration in a single document of 44 pages, the Declaration being on page 44. Again, shortly after the cxchange of ratifications, the Govemment of the United Kingdom issued Treaty Series No. 2 (1927), a single document entitlrd "Treaty of Commerce and Navigation between the United Kingdom and Greece and accompanying Declaration", and presented it to Parliament. Furthermore, the British Foreign Office and the Chargé d'Affaires of the Hellenic Republic at Berne communicated official texts to the League of Nations a t Geneva for registration, which led to their inclusion in the League of Kations Treaty Series under a single number, a s "No. 1425. Treaty of Commerce and Navigation between the United Kingdom and Greece and accompan7ing Declaration signed a t London, July 16th, 1926."

text: Cogent evidence as to what both Parties intended is furnished by the instruments of ratification exchanged between the United Kingdom and Greece. The instrument of ratification by Greece was in the foiiowing terms : "We declare that the Treaty of Commerce and Navigation having been signed in London on the 16th July of this year between Greece and Great Britain with annexed Customs Schedule and Declaration, the texts of which follow : [Here follow the Greek and English texts of the Treaty, Schedule and Declaration.] We accept, approve and ratify the Treaty, the Customs Schedule and the Declaration in al1 their provisions, promising t o faithfiilly observe and not to violate the same, or to permit their violation by any other person whatsoever", etc.

text: Thus, this instrument made no distinction between the Treaty, on the one hand, and the Customs Schedule.which is indisputably a part of the Treaty, and the Declaration annexed to the Treaty, on the other. I t is clear, therefore, that Greece treated the Declaration as a part of the Treaty.

text: JUDGMENT OF I VII 52 (AJIBATIELOS CASE)

text: The United Kingdom's instrument of ratification is even more

text: Whereas a Treaty between Us and Our good friend the President of the Hellenic Republic, relative to commerce and navigation, was concluded and signed at London on the sixteenth day of July in the year of Our Lord one thousand nine hundred and twenty-six by the Plenipotentiaries of L-s and of Our said good friend duly and respectively authorized for that purpose, which Treaty is, word for ivord, as folloivs : Pere follow the English and Greek texts of the Treaty, Schedule and Declaration.] "We, having seen and considered the Treaty aforesaid, have approved, accepted and confirmed the same in ail and every one of its articles and clauses", etc. From the wordç "which Treaty is, word for word, as follows" and the text that follows the words, it is clear that the Cnited Kingdom also regarded the Declaration, as well as the Customs Schedule, as included in the Treaty. The ratification of a treaty which provides for ratification, as does the Treaty of 1926, is an indispensable condition for bringmg it into operation. I t is not, therefore, a mere formal act, but an act of vital importance. When the Government of the United Kingdom speaks of the Treaty in its own instrument of ratification, as being "word for word as follows" and includes the Declaration in the text that follows, i t is not possible for the Court to hold that the Declaration is not included in the Treaty. The nature of the Declaration also points to the same conclusion. I t records an understanding amved a t by the Parties before the Treaty of 1926 was signed as to what the Treaty, or as Counsel for the Govemment of the United Kingdom preferred to put it, the replacement of the Treaty of 1886 by the Treaty of 1926, would not prejudice. This is clear from the opening words

text: not prejudice claims on behalf of private persons based on the provisions of the Anglo-Greek Commercial Treaty of 1886." From the series of instruments which from time to time continued the Treaty of 1886 in force after its initial denunciation by Greece, it is evident that ultimately it was the coming into force of the Treaty of 1926 that finally terminated the operation of the Treaty of 1886. But for the Declaration, Article 32 of the Treaty of 1926, which brought that Treaty into force upon ratification, might, in the absence of any saving clause, have been regarded a s putting the Treaty into full operation so as completely to wipe out the Treaty of 1886 and al1 its provisions, including its remedial provisions, and any claims based thereon. Indeed, the United Kingdom Government, before proceeding to the signature of the Treaty of 1926, asked for an assurance that the Hellenic Govemment would not regard "the conclusion of the Treaty" as prejudicing certain claims of British subjects based on the older Treaty.

text: 2 2

text: The intention of the Declaration was t o prevent the new Treaty from being interpreted as coming into fuli force in this sweeping manner and thus prejudicing claims based on the older Treaty or the remedies provided for them. I t follows that, for the proper interpretation or application of the provisions of the Treaty of 1926, some siich words as "Save as provided in the Declaration annexed to this Treaty" have to be read into Article 32 before the words "It shah come into force". Thus, the provisions of the Declaration are in the nature of an interpretation clause, and, as such, should be regarded as an integral part of the Treaty, even if this was not stated in terms.

text: For these reasons, the Court holds that either expressly (by virtue of the United Kingdom's own instrument of ratification) or by necessary implication (from the very nature of the Declaration) the provisions of the Declaration are provisions of the Treaty within the meaning of Article 29. Consequently, this Court has jurisdiction to decide any dispute as to the interpretation or application of the Declaration and, in a proper case, to adjudge that there should be a reference to a Commission of Arbitration. Any differences as t o the validity of the claims involved will, however, have t o be arbitrated, as provided in the Declaration itself, by the Commission.

text: I t may seem a t first sight that there is here a possibility of a conflict between a decision of the Court finding that there is an obligation to submit a difference t o a Commission of Arbitration and an eventual decision by the Commission. There is in reality no such possibility. The Court would decide whether there is a differerLce between the Parties within the meaning of the Declaration of 1926. Should the Court find that there is such a difference, the Commission of Arbitration would decide on the merits of the difference. It may be contended that because a special provision overrides a general provision, the Declaration should ovemde Article 29 of the Treaty of 1926 and, as it lays down a special arbitral procedure, it excludes the jurisdiction of the Court under Article 29. While it is true that the Declaration excludes the Court from functioning as the Commission of Arbitration, it is equally true that it lies with the Court to decide precisely whether there should he a reference to a Commission of Arhitration.

text: The sixth argument of the United Kingdom Government is that :

text: "The claim which the Greek Governrnent is making on behalf of 31. .4rnbaticlos in so far as it is bnscd on any provision of the Tre;ity of 1S130, is not a claim covc,red by the Dcclaration of 1926,

text: For these reasons,

text: adjudicating on the Preliminary Objection fded by the Government of the United Kingdom of Great Britain and Northern Ireland to the Application of the Royal Hellenic Government,

text: by thirteen votes to two,

text: finds that it is without jurisdiction to decide on the merits of the Ambatielos claim ;

text: by ten votes to five,

text: finds that i t has jurisdiction to decide whether the United Kingdom is under an obligation to submit to arbitration, in accordance with the Declaration of 1926, the difference as to the validity of the Ambatielos claim, in so far as this claim is based on the Treaty of 1886 ; decides that the time-limits for the filing of a Reply and a Rejoinder shall be fixed by subsequent Order.

text: Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this first day of July, one thousand nine hundred and fifty-two, in three copies, one of which will be placed in the archives of the Court and the others wiil be transniitted to the Royal Hellenic Govemment and to the Government of the United Kingdom of Great Britain and Northern Ireland, respectively.

text: (Signed) J. G. GUERRERO, Vice-President .

text: (Signed) E . HAMBRO,

text: Registrar.

text: Judge LEVI CARNEIRO and M. SPIROPOULOS, Judge ad hoc, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment of the Court statements of their individual opinions.

text: Judge ALVAREZ declares that there are in the present case sufficient grounds for holding that the Court has juridiction to deal with the merits of the Ambatielos claim.

text: The President Sir Arnold MCNAIR, Judges BASDEVANT, ZORICIC, KLAESTAD and Hsu Mo, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment statements of their dissenting opinions.

text: (Initialled) J . G . G .

text: (Initialled) E . H.

title: Ambatielos (Greece v. United Kingdom)