                     215

                               DECLARATION OF JUDGE AD HOC BROWER

                        Colombia’s first preliminary objection — The Pact of Bogotá — Interpretation
                     of Article LVI of the Pact of Bogotá — Guidance from travaux préparatoires —
                     The principle of effet utile — Articles LVIII and LIX of the Pact of Bogotá.

                        1. While I am one of the seven Members of the Court who have issued
                     a joint dissenting opinion vigorously opposing the Judgment’s conclu‑
                     sion, reached only with the casting vote of the President due to the even,
                     eight to eight, split of the Court on the issue, to reject Colombia’s third
                     preliminary objection (res judicata), I have joined all of the other Mem‑
                     bers of the Court in concluding that, on balance, the Court does have
                     jurisdiction over Nicaragua’s Application under the Pact of Bogotá. I
                     think it important, however, to explain the difficulties the Court necessar‑
                     ily has had in accepting Colombia’s interpretation of the second para‑
                     graph of Article LVI of the Pact, particularly given the astronomical
                     “black hole” of the virtually complete absence of useful guidance from
                     any travaux préparatoires in respect of that paragraph.

                        2. The context for the Court’s consideration of that paragraph was
                     graphically given by Nicaragua itself when its counsel conceded, more
                     than once, in the oral proceedings that that second paragraph is “super‑
                     fluous, but . . . not ineffective”, or, as Colombia characterized it suc‑
                     cinctly, “superfluous but not useless”. In other words, the only alternative
                     to acceptance of Colombia’s interpretation of that paragraph is that it
                     has no meaning whatsoever other than, as the Court has agreed, to make
                     clear out of an abundance of caution what in any event would be true. Of
                     course just as nature abhors a vacuum, so, too, is the Court generally
                     driven to attribute a meaning to each and every provision of a treaty, as
                     required by the principle of effet utile.
                        3. The Court fortunately notes and discusses, though neither Nicara‑
                     gua nor Colombia did, neither in their written submissions nor in the oral
                     proceedings, Articles LVIII and LIX of the Pact, the first of which termi‑
                     nates eight earlier treaties as the Pact enters into force for parties to the
                     Pact and any of those earlier instruments, and the second of which echoes
                     the second paragraph of Article LVI: “The provisions of the foregoing
                     Article [LVIII] shall not apply to procedures already initiated or agreed
                     upon in accordance with any of the above‑mentioned international instru‑
                     ments.”

                     119

7 CIJ1093.indb 234                                                                                15/02/17 08:28

                     216 	 delimitation of the continental shelf (decl. brower)

                        4. It could be argued from these two Articles, put alongside the entirety
                     of Article LVI, that collectively they reflect an intention of the parties to
                     the Pact that once the Pact would be denounced by a party, then, just as
                     with Article LVIII’s termination of the eight previous treaties, no new
                     proceedings could be commenced. Further, since Nottebohm ((Liechten-
                     stein v. Guatemala), Preliminary Objection, Judgment, I.C.J. Reports
                     1953, p. 111) confirmed definitively only in 1953, or five years after the
                     conclusion of the Pact in 1948, that the Court’s jurisdiction attaches upon
                     the submission of an application and endures thereafter irrespective of
                     the subsequent termination of the instrument on which such jurisdiction
                     was based, it could be argued that the second paragraph of Article LVI
                     had, when drafted in 1938 and when the Pact was adopted ten years later,
                     the effet utile of making clear what had not yet been definitively estab‑
                     lished by Nottebohm, though this, too, perhaps could be regarded as
                     being done out of an abundance of caution. In any event, the Court has
                     not found any of this persuasive, fundamentally because of the complete
                     absence of any indication in the very limited travaux préparatoires as to
                     why that second paragraph was included.

                        5. All the Court could derive from those records was quite meagre
                     fare. In 1937, the Director General of the Pan‑American Union invited
                     the Under Secretary of State of the United States to “consider the possi‑
                     bility of taking the initiative at the forthcoming Conference at Lima in
                     recommending additions to the existing treaties of peace with the view of
                     increasing their usefulness”. On 15 November 1938, the United States
                     responded positively, submitting a Draft Treaty for discussion at the con‑
                     ference in Lima to be held shortly thereafter. That draft did not include
                     what is the second paragraph of Article LVI of the Pact. During the ensu‑
                     ing Lima conference itself, however, just one month after submission of
                     that first draft, the United States submitted an amended second draft,
                     which did include within the draft’s denunciation provision this language:
                     “Denunciation shall not affect any pending proceedings instituted before
                     notice of denunciation is given.”

                        6. Essentially the same language was retained throughout the various
                     relevant conferences and versions of the Pact as it progressed to its con‑
                     clusion ten years after first being introduced. At the last minute, at the
                     1948 conference that concluded the Pact of Bogotá, its Drafting Commit‑
                     tee “decided that the best drafting possible would consist on [sic] replicat‑
                     ing Article 16 of the 1929 Treaty [i.e., the General Convention of
                     Inter‑American Conciliation]”, which it then did, adding, however, now
                     for the first time as a separate second paragraph: “The denunciation will
                     not have any effect on proceedings pending and initiated prior to the
                     transmission of the respective notice.”
                        7. Unfortunately, nowhere in the ten years between the United States’
                     1938 introduction of that language, which consistently was included, with

                     120

7 CIJ1093.indb 236                                                                                15/02/17 08:28

                     217 	 delimitation of the continental shelf (decl. brower)

                     minor variations not affecting the substance, in each successive version of
                     what became the Pact of Bogotá, and the Pact’s conclusion in 1948 is
                     there any record indicating why what became the second paragraph of
                     the Pact’s Article LVI was introduced and repeatedly accepted during the
                     ten following years by all concerned. It clearly is due to the absence of
                     any such guidance that the Court has felt constrained to prefer the inter‑
                     pretation of the paragraph in question as having the, albeit superfluous,
                     effet utile of an abundance of caution to the rather more difficult a con-
                     trario inference for which Colombia has argued. This is all the more
                     understandable considering Article 44 (1) of the Vienna Convention on
                     the Law of Treaties, which provides that “[a] right of a party, provided
                     for in a treaty . . ., to denounce . . . may be exercised only with respect to
                     the whole treaty unless the treaty otherwise provides”, a default rule
                     which inherently has posed a further, and undeniably difficult, interpre‑
                     tive obstacle. In my view, though not arrived at without some hesitation,
                     the Court’s conclusion, everything considered, is not unreasonable, hence
                     I have not found myself able to dissent from it.

                                                                (Signed) Charles N. Brower.

                     121

7 CIJ1093.indb 238                                                                                15/02/17 08:28


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943

(ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA)

ORDER OF NOVEMBER 3rd, 1953

1953

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L?OR MONÉTAIRE

PRIS A ROME EN 1943

(ITALIE c. FRANCE, ROYAUME-UNI DE GRANDE-
BRETAGNE ET D'IRLANDE DU NORD ET
ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE DU 3 NOVEMBRE 1953

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
This Order should be cited as follows:

“Case of the monetary gold removed from Rome in 1943,
Order of November 3rd, 1953: 1.C. J. Reports 1953, p. 44.”

La présente ordonnance doit être citée comme suit:

« Affaire de Vor monétaire pris à Rome en 1943,
Ordonnance du 3 novembre 1953: C.I. J. Recueil 1953, p. 44.»

Sales number 109

44

INTERNATIONAL COURT OF JUSTICE

November 3rd YEAR 1953

General List :

No. 19 November 3rd, 1953

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943

(ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA)

ORDER

The International Court of Justice,
having regard to Articles 48 and 49 of the Statute of the Court,
having regard to Article 37 of the Rules of Court ;

Makes the following Order :

Having regard to the Application dated May 19th, 1953, and
filed in the Registry of the Court on that date, by which the Itahan
Republic instituted proceedings against France, the United King-
dom of Great Britain and Northern Ireland and the United States
of America in the case of the monetary gold removed from Rome

Having regard to the Order of July 1st, 1953, fixing time-limits
for the filing of a Memorial and Counter-Memorials in that case, and
reserving the rest of the procedure for further decision,

Whereas on October 30th, 1953, the Agent of the Government of
the Republic of Italy in this case filed in the Registry a document
bearing the same date, and entitled ‘‘Affaire de l’or monétaire pris
a Rome en 1943 —- Question préliminaire”,

Whereas the said document, filed before the expiry of the time-
limit fixed for the filing of a Memorial by the Government of the

4
45 MONETARY GOLD CASE (ORDER OF 3 XI 53)

Italian Republic, requests the Court, for the reasons therein set
out, and having regard to Article 62 of the Rules, to adjudicate on
the preliminary question of its jurisdiction to deal with the merits
of the claim set forth under No. 1 of the Submissions of the Appli-
cation submitted to the Court on May 19th, 1953,

Whereas, without prejudging the question of the interpretation
and application of Article 62 of the Rules of Court, it is deemed
appropriate to give the Government of the Italian Republic an
opportunity to define its position and to submit documents in
support thereof ;

THE COURT
Suspends the proceedings on the merits ;

Fixes December 15th, 1953, as the time-limit within which the
Italian Government may present a written statement defining its
position, together with documents in support ;

Fixes February 15th, 1954, as the time-limit within which the
Governments of the French Republic, the United Kingdom of
Great Britain and Northern Ireland and the United States of
America may present written statements of their observations and
submissions ;

Reserves the rest of the procedure for further decision.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this third day of November, one
thousand nine hundred and fifty-three, in five copies, one of which
will be placed in the archives of the Court and the others will be
transmitted to the Governments of the Italian Republic, of the
French Republic, of the United Kingdom of Great Britain and
Northern Ireland and of the United States of America, respectively.

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

(Signed) GARNIER-COIGNET,
Deputy-Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

AMBATIELOS CASE

(GREECE v. UNITED KINGDOM)
PRELIMINARY OBJECTION

JUDGMENT OF JULY ist, 1952

1952

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AMBATIELOS

(GRÈCE c. ROYAUME-UNI)
EXCEPTION PRÉLIMINAIRE

ARRÊT DU 1er JUILLET 1952
This Judgment should be cited as follows :

“Ambatielos case (jurisdiction), Judgment of July st, 1952:
I.C.J. Reports 1952, p. 28.”

Le présent arrêt doit être cité comme suit :

« Affaire Ambatielos (compétence), Arrêt du
re juillet 1952: C.I. J. Recueil 1952, p. 28.»

N° de vente: 89
Sales number

JULY rst, 1952-

JUDGMENT

AMBATIELOS CASE
(GREECE v. UNITED KINGDOM)

PRELIMINARY OBJECTION

AFFAIRE AMBATIELOS
(GRECE c. ROYAUME-UNI)

EXCEPTION PRELIMINAIRE

xer JUILLET 1952

ARRET
1952

July 1st
General List:

No.

15

28

INTERNATIONAL COURT OF JUSTICE

YEAR 1952

July ist, 1952

AMBATIELOS CASE

(GREECE v. UNITED KINGDOM)
PRELIMINARY OBJECTION

Analysis of the Submissions of the Parties, to define the issues before
the Court.— Conditions proposed for the conferring of jurisdiction on the
Court as Commission of Arbitration: unequivocal agreement of the
Parties.—No retroactive operation of a treaty where no provision to this
effect and no special veason.— Relation between the Declaration of
July r6th, 1926, and the Treaty of the same date ; external and internal
evidence of the will of the contracting Parties in this connection : same
signatories, ratification of the whole by each of the parties, registration
of the whole with the League of Nations, character of the Declaration as
interpretative proviston.—No possibility of conflict between the decision
of the Court and that of the Commission of Arbitration.— Distinction
between claims formulated before, and those not formulated before a
certain date not warranted by the terms of the Declaration.—Inter-
pretation of treaty provisions resulting in certain categories of disputes
remaining without means of solution : contrary desire of the Parties.

JUDGMENT

Present : Vice-President GUERRERO, Acting President, President

Sir Arnold McNair; judges ALVAREZ, BASDEVANT,
HACKWORTH, WINIARSKI, ZORICI€, KLAESTAD, BADAWI
PasHa, READ, Hsu Mo, Levi CARNEIRO, Sir Benegal Rau,
ARMAND-UGon ; M. SPIROPOULOS, Judge ad hoc; Registrar
HAMBRO.
29 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

In the Ambatielos case,

between

the United Kingdom of Great Britain and Northern Ireland,
represented by :

Mr. V. J. Evans, Assistant Legal Adviser of the Foreign Office,

as Agent,
assisted by :

Sir Eric Beckett, K.C.M.G., Q.C., Legal Adviser of the Foreign
Office,

Mr. D. H. N. Johnson, Assistant Legal Adviser of the Foreign
Office,

Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar,

as Counsel,

and

the Kingdom of Greece,
represented by:

M. N. G. Lély, Envoy Extraordinary and Minister Plenipoten-
tiary of H.M. the King of the Hellenes in the Netherlands,

as Agent,
assisted by :

The Right Honourable Sir Hartley Shawcross, Q.C., M.P., former
Attorney-General of the United Kingdom,

Mr. C. J. Colombos, Q.C., LL.D., Member of the English Bar,

M. Henri Rolin, Professor of International Law at Brussels
University, former President of the Belgian Senate,

M. Jason Stavropoulos, Legal Adviser of the Ministry for Foreign
Affairs,

as Counsel,

THE Court,
composed as above,

adjudicating on the Preliminary Objection of the Government of

the United Kingdom,

8

delivers the following Judgment :
30 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

On April gth, 1951, the Greek Minister in the Netherlands, duly
authorized by his Government, filed in the Registry an Application
instituting proceedings before the Court against the United King-
dom of Great Britain and Northern Ireland concerning the claim
relating to the rights of a Greek shipowner, Nicolas Eustache
Ambatielos, alleged to have suffered considerable loss in conse-
quence of a contract which he concluded in 1919 with the Govern-
ment 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 to the Treaty of Commerce and
Navigation between Greece and Great Britain, signed at Athens on
November roth, 1886, and to the Treaty of Commerce and Naviga-
tion between the same Contracting Parties signed at London on
July 16th, 1926, including the Declaration. The Application
requests the Court :

“To declare that it has jurisdiction :
To adjudge and declare...

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 to Article 40, paragraphs 2 and 3, of the Statute, the
Application was notified to the Government of the United Kingdom
and ‘to the States entitled to appear before the Court. It was also
transmitted to the Secretary-General of the United Nations.

The Memorial of the Hellenic Government was filed within the
time-limit prescribed by Order of May 18th, 1951, and later extended
by Order of July 30th, 1951. It sets out the following Submissions :

“.... the Hellenic Government requests the Court to adjudge and
declare :

{1) That the United Kingdom Government is under an obliga-
tion to agree to refer its present dispute with the Hellenic Govern-
ment 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 con-
stitute a denial of justice (Anglo-Iranian Oil 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
31 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

even being bound to resort beforehand to the arbitration mentioned
under submissions 1 and 2 above; |

(5) alternatively, that the United Kingdom Government is
under an obligation, as a Member of the United Nations, to conform
to the provisions of Article 1, paragraph 1, of the Charter of the
United Nations, one of whose principal purposes is: ‘to bring about
by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement 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
Government and the United Kingdom Government is a legal
dispute susceptible of adjudication by the Court.”

On February oth, 1952, within the time-limit prescribed by Order
of July 30th, and later extended by Orders of November gth, 1951,
and January 16th, 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, it contended that the
Court lacked jurisdiction, expressly presenting this contention as a
Preliminary Objection under Article 62 of the Rules of Court. As
regards jurisdiction, the Counter-Memorial requests the Court to
adjudge and declare that it 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 Government based
on Article XV or any other Article of the Treaty of 1886 ;

or
(6) itself to decide on the merits of such a claim”,

and that, likewise, it 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 Government for denial
of justice based on the general principles of international
law or for unjust enrichment, or

(6) itself to decide upon the merits of such a claim.”’

The filing of the Preliminary Objection having suspended pro-
ceedings on the merits, a time-limit was prescribed by Order of
February 14th, 1952, for the presentation by the Hellenic Govern-
ment of a written statement of its Observations and Submissions
on the Objection. Furthermore, the States entitled to appear before
the Court were informed of the deposit of the Objection.

Io
32 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

The Observations and Submissions of the Hellenic Government
were filed on April 4th, 1952. They contain the following Submis-
sions :

“"... the Hellenic Government asks that it may please the Court
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 insti-
tuting proceedings and hereinafter clarified :

1. in the first place, to hold that the United Kingdom Government
is bound to accept the submission to the Internationa] Court
of Justice, sitting as an arbitral tribunal, of the dispute now
existing between that Government and the Hellenic Govern-
ment, and accordingly to fix time-limits for the filing by the
Parties of the Reply 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
be resumed before the Court, the President of which, upon the
Application of the Hellenic Government, shall fix time-limits
for the filing of the Reply and the Rejoinder ;

3. in the further alternative, to direct the Parties to put into execu-
tion the procedure for a Commission of Arbitration 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
the merits, by application of Article 62 of the Rules, to join
the Objection to the merits.”

After the deposit of the Hellenic Government’s Observations
and Submissions, the case was ready for hearing, in so far as the
Preliminary Objection was concerned. As the Court included upon
the Bench a judge of the nationality of one of the Parties, the
other Party—the Hellenic Government—availed itself of the
right conferred on it by Article 31, paragraph 2, of the Statute
of the Court and appointed Professor Jean Spiropoulos to sit
as judge ad hoc. As the President of the Court was the national
of one of the Parties, he transferred the Presidency for the present
case to the Vice-President, in accordance with Article 13, para-
graph 1, of the Rules of Court. Public hearings were held on
May 15th, 16th and 17th, in the course of which the Court heard
Sir Eric Beckett, Counsel, on behalf of the Government of the
United Kingdom ; and M. Lély, Agent, Sir Hartley Shawcross and
M. Henri Rolin, Counsel, on behalf of the Hellenic Government.

IT
33

JUDGMENT OF I VII 52 (AMBATIELOS CASE)

In the course of the argument before the Court, the following

Submissions were presented :

On behalf of the United Kingdom Government :

“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 Government of the United Kingdom
by the Hellenic Government in respect of the treatment of
M. Ambatielos.”

On behalf of the Hellenic Government :

12

“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 :

1, that the complaints formulated by that Government in its
Memorial, relating to the breach of the contract of sale of the
ships, to the unjust enrichment, to the non-production at the
trial of certain documents of which M. Ambatielos was unaware
and to the improper administration of justice (denial of justice
stricto sensu), all have, in the opinion of that Government, a
legal foundation in Articles I, X, XV, paragraph 3, of the Treaty
of Commerce and Navigation of November 1oth, 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 provi-
sions referred to above ;

2. that the British Government has, through its Counsel, Sir Eric
Beckett, expressed its willingness that the Court should under-
take 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 affirmative decision on this question.

This having been done, for the reasons indicated in the Hellenic
Observations and enlarged upon by Counsel ;

to hold that it has jurisdiction to deal with the merits of the
Hellenic 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.”
34

JUDGMENT OF I VII 52 (AMBATIELOS CASE)

The Treaty provisions herein before mentioned are as follows :

Treaty of Commerce and Navigation of November roth, 1886

“Article I

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 all places,
ports and rivers in the dominions and possessions of the other
to which native subjects generally are or may be permitted to
come, and shall enjoy respectively the same rights, privileges,
liberties, favours, immunities and exemptions in matters of com-
merce and navigation which are or may be 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.

Article X

The Contracting Parties agree that, in all matters relating to
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 the
subjects or citizens of the other Contracting Party ; it being their
intention that the trade and navigation of each country shall be
placed, in all respects, by the other on the footing of the most-
favoured nation.

Article XV

The dwellings, manufactories, warehouses and shops of the
subjects of each of the Contracting Parties in the dominions and
possessions of the other, and all premises appertaining thereto
destined for purposes of residence or commerce shall be respected.

It shall not be allowable to proceed to make a search of, or
a domiciliary visit to, such dwellings and premises, or to examine
and inspect books, papers, or accounts, except under the con-
ditions and with the form prescribed by the laws for subjects of
the country.

The subjects of each of the two Contracting Parties in the
dominions and possessions of the other shall have free access to
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 at liberty
to employ, in all causes, their advocates, attorneys or agents, from
among the persons admitted to the exercise of those professions
according to the laws of the country.”

Protocol of November loth, 1886

13

“At the moment of proceeding this day to the signature of
the Treaty of Commerce and Navigation between Great Britain
35

JUDGMENT OF I VII 52 (AMBATIELOS CASE)

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 Arbi-
tration 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 at the
same time as the Treaty, and that when the Treaty is ratified,
the agreements contained in the Protocol shall also equally be
considered as approved, without the necessity of a further formal
ratification.”

Treaty of Commerce and Navigation of July 16th, 1926

14

‘Article I

There shall be between the territories 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 all 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.

Article 3

The subjects or citizens of each of the two Contracting Parties
in the territories of the other shall enjoy, in respect of their persons,
their property, rights and interest, and in respect of their com-
merce, 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 sub-
stantially taxes, and other similar charges are concerned.

Article 4

The two Contracting Parties agree that in all matters relating
to commerce, navigation and industry and the exercise of profes-
sions or occupations, any privileges, favour or immunity which
either of the two Contracting Parties has actually granted, or may
36 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

hereafter grant, to the ships and subjects or citizens of any other
foreign country shall be extended, simultaneously and uncondition-
ally, without request and without compensation, to the ships and
subjects or citizens of the other, it being their intention that the
commerce, navigation and industry of each of the two Contracting
Parties shall be placed in all respects on the footing of the most-
favoured nation.

Article 29

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

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

Declaration of July 16th, 1926

“It is well understood that the Treaty of Commerce and Navi-
gation between Great Britain and Greece of to-day’s date does not
prejudice claims on behalf of private persons based on the provi-
sions of the Anglo-Greek Commercial Treaty of 1886, and that
any differences which may arise between our two Governments
as to the validity of such claims shall, at the request of either
Government, be referred to arbitration in accordance with the
provisions of the Protocol of November roth, 1886, annexed to.
the said Treaty.”

The Agents of the Parties have informed the Court that the com-
mercial relations between the United Kingdom and 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 by Greece in
1919 and 1924, nevertheless, by successive agreements and
exchanges of notes, it was continued in force from time to time ;
in the final exchange of notes, it was agreed that the provisional
modus vivendi by which the Treaty was continued until August 31st,
1926, would lapse on the date on which the Treaty of 1926 came
into force.

It is necessary for the Court at the outset to review briefly
the Submissions of the Parties as they were developed during the
proceedings.

In the Application of the Hellenic Government there were three
requests, the first of which was that the Court should declare that it
had jurisdiction; the second that the Court should declare and adjudge
that the arbitral procedure referred to in the Final Protocol of the
Treaty of 1886 must receive application in the present case ; and the

15
37 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

third related to the constitution of the Arbitration Commission. In
the Memorial which followed the Application, the request, inter alia,
was that the Court should declare and adjudge that the arbitral
procedure aforesaid should receive application, which implies a
previous decision that the Court had jurisdiction so to do. In 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 juris-
diction, and, adjudicating upon the competence of the Court as
requested in the Application, to direct the Parties to put into exe-
cution the procedure for a Commission of Arbitration as provided
for by the Protocol of 1886 (this latter Submission being an alter-
native to the Submission asking the Court to hold that the
United Kingdom Government is bound to accept the submis-
sion of the difference to this Court acting as an 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 it had jurisdiction
to deal with the merits, or, in the alternative, that it 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 :

(i) 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-
ment 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.”

(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-

16
38 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

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

(0) itself to decide upon the merits of such a claim.”

The brief but comprehensive final Submission obviously includes
the jurisdictional objections more particularly set out in the
Counter-Memorial.

It is evident from the above summary that, apart from the
jurisdiction of the Court on the merits; the question of its juris-
diction to decide upon the obligation to submit the difference to
arbitration is implicit in the final Submissions of both Parties.

The Hellenic Government’s final Submissions refer to an offer of
the United Kingdom Government (through its Counsel), upon
certain conditions, that the Court itself should undertake the. func-
tion of arbitration. It is true that the United Kingdom Government
has made some such offer, but the conditions attached to it are not
very clear. In paragraph III of the Submissions at the end of the
Counter-Memorial, the United Kingdom Government stated that if,
contrary to its contentions, the Court should hold that it had
“Jurisdiction to order arbitration of a claim by the Hellenic Govern-
ment 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 all 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. It 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
at 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 Hellenic 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 :

“Before I go further, I 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

17
39 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

this extent, in accord with its opponents, that it will, in that
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.”

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
it to arbitration. This discrepancy throws some doubt on the
existence of any unequivocal agreement between the Parties upon
this matter. The Court has, bowever, no doubt that in the absence
of a clear agreement between the Parties in this respect, the Court
has no jurisdiction to go into all the merits of the present case as a
commission of arbitration could do.

As regards the reference in the Counter-Memorial to the Hellenic
Government being precluded by lapse of time from submitting the
present claim, the Court holds that this is a point to be considered
with the merits and not at the present stage.

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

“(1) The jurisdiction of the Court, if it exists at all, must be
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 relating to the interpretation

or application of the provisions of the Treaty of 1926 itself.”

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 (1), by virtue of a
special agreement or the provisions of a treaty. The Hellenic
Government 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 all 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 :

“The two Contracting Parties agree in principle that any dispute
that may arise between them as to the proper interpretation or

18
40 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

application of any of the provisions of the present Treaty shall, at
the request of either Party, be referred to arbitration.

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.”

It follows, therefore, that any dispute as to the interpretation or
application of any of the provisions of the Treaty of 1926 is refer-
able by either Party to this Court.

The third and fourth points raised on behalf of the United King-
dom 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
place 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.”

These points raise the question of the retroactive operation of the
Treaty of 1926 and are intended to meet what was described during
the hearings as ‘‘the similar clauses theory’’, advanced on behalf of
the Hellenic Government. The theory is that where in the 1926
Treaty there are substantive provisions similar to substantive
provisions 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 cannot accept this theory for the following
reasons :

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

It was contended on behalf of the Hellenic Government that the
arbitral procedure stipulated in Article 29 of the Treaty of 1926
differed from that in the Protocol of 1886 only in respect of the
tribunal provided for arbitration: under the Treaty of 1926 the
arbitral tribunal was to be the Permanent Court of International

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41 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

Justice, while under the Protocol of 1886 the tribunal was to be an
ad hoc commission of arbitration. This, it was argued, was a proce-
dural variation and in matters of procedure, at least in English law,
the presumption as to 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 to
selected provisions of that Treaty.

(ii) Accompanying the Treaty of 1926—whether as a part thereof
or not is a question which will be dealt with later—was a Declara-
tion 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 Decla-
ration makes no distinction between claims based on one class of
provisions of the 1886 Treaty and those based on another class ;
they are all placed on the same footing and differences relating to
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
accordance. with Article 29 of the later Treaty, while differences
relating to other claims based on the earlier Treaty were meant to
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.

The fifth point raised on behalf of the United Kingdom Govern-
ment is that :

“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 20.”

Both Parties agree that this is the most important issue in the
case. In 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. It is also pointed out that the Declaration
refers to the Treaty not as ‘this Treaty” or ‘‘the present Treaty’ —
which would have been the proper mode of reference if the Declara-
tion had been regarded as part of the Treaty—but as “‘the Treaty

20
42 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

. of to-day’s date”, thereby indicating that the Treaty had
already been completed and signed. Moreover, it is urged, the
Declaration 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 to the Greco-Italian Commercial Treaty of
November 24th, 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.

On the other hand, it is to be noted that the Plenipotentiaries
included the Treaty and the Customs Schedule (which is unques-
tionably a part of the Treaty) and the Declaration in a single docu-
ment of 44 pages, the Declaration being on page 44. Again, shortly
after the exchange of ratifications, the Government of the United
Kingdom issued Treaty Sertes No. 2 (1927), a single document
entitled “Treaty of Commerce and Navigation between the United
Kingdom and Greece and accompanying Declaration”, and pre-
sented it to Parliament. Furthermore, the British Foreign Office and
the Chargé d’Affaires of the Hellenic Republic at Berne commun-
icated official texts to the League of Nations at Geneva for registra-
tion, which led to their inclusion in the League of Nations Treaty
Series under a single number, as ‘No. 1425. Treaty of Commerce
and Navigation between the United Kingdom and Greece and
accompan”ing Declaration signed at London, July 16th, 1926.”

Cogent evidence as to what both Parties intended is furnished by
the instruments of ratification exchanged between the United King-
dom and Greece. The instrument of ratification by Greece was in
the following 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 Decla-
ration.) We accept, approve and ratify the Treaty, the Customs
Schedule and the Declaration in all their provisions, promising to
faithfully observe and not to violate the same, or to permit their
violation by any other person whatsoever’’, etc.

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. It is clear, therefore, that Greece treated the Declaration
as a part of the Treaty.

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43 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

The United Kingdom's instrument of ratification is even more
explicit. It reads: ‘GEORGE, by the Grace of God .... greeting.
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 Us and of Our said good
friend duly and respectively authorized for that purpose, which
Treaty is, word for word, as follows: [here 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 all and every one
of its articles and clauses’’, etc.

From the words ‘‘which Treaty is, word for word, as follows”
and the text that follows the words, it is clear that the United
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 bringing it into operation. It 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,
it 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 con-
clusion. It records an understanding arrived at by the Parties
before the Treaty of 1926 was signed as to what the Treaty, or as
Counsel for the Government 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
“It is well understood that the Treaty .... of to-day’s date, does
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
as putting the Treaty into full operation so as completely to wipe
out the Treaty of 1886 and all 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 Govern-
ment would not regard ‘‘the conclusion of the Treaty’’ as preju-
dicing certain claims of British subjects based on the older Treaty.

22
44 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

The intention of the Declaration was to prevent the new Treaty
from being interpreted as coming into full force in this sweeping
manner and thus prejudicing claims based on the older Treaty or
the remedies provided for them. It follows that, for the proper
interpretation or application of the provisions of the Treaty of
1926, some such words as “Save as provided in the Declaration
annexed to this Treaty” have to be read into Article 32 before
the words ‘‘It shall 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.

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 Declar-
ation) 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 to the validity of the claims involved will, how-
ever, have to be arbitrated, as provided in the Declaration itself,
by the Commission.

It may seem at 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 to 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 difference 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 override 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 hes with the Court to decide precisely whether there
should be a reference to a Commission of Arbitration.

The sixth argument of the United Kingdom Government is that:

“The claim which the Greek Government is making on behalf
of M. Ambatielos in so far as it is based on any provision of the
Treaty of 1886, is not a claim covered by the Declaration of 1926,

23
45 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

because that Declaration only covered claims which had been
formulated under that Treaty before the Declaration was signed,
and the Greek Government did not formulate any legal claim in
respect of M. Ambatielos until 1933, nor indeed any legal claim
under the Treaty of 1886 until 1939.”

The phrase used in the Declaration is ‘‘claims based on the
provisions of the Anglo-Greek Commercial Treaty of 1886”. There
is no reference whatever in the Declaration to the date of formu-
lation of the claims; the only requirement is that they should
be based on the Treaty of 1886. Counsel for the United Kingdom
attempted to support his contention by referring to the negotiations
which led to the signature of the Declaration. The records of the
negotiations, however, do not support the contention. They show
that although the Hellenic Government originally suggested a draft
of the Declaration referring to ‘anterior claims eventually deriving
from the Anglo-Greek Commercial Treaty of 1886’’, this draft was
ultimately not accepted, and both Parties adopted, instead, the
text of the Declaration as it now appears, omitting the word
anterior. in any case where, as here, the text. to be interpreted
is clear, there is no occasion to resort to preparatory work.

If the United Kingdom Government’s interpretation were
accepted, claims based on the Treaty of 1886, but brought after
the conclusion of the Treaty of 1926 would be left without solution.
They would not be subject to arbitration under either Treaty,
although the provision on whose breach the claim was based might
appear in both and might thus have been in force without a break
since 1886. The Court cannot accept an interpretation which would
have a result obviously contrary to the language of the Declaration
and to the continuous will of both Parties to submit all differences
to arbitration of one kind or another.

There now remains the final argument that “the Treaty of 1886
contains no provisions incorporating in the Treaty the general
principles of international law with regard to the treatment of
foreigners in courts of justice or otherwise and in consequence it
cannot be said that the alleged denial of justice in breach of the
general principles of international law is a breach of the Treaty
of 1886, merely because it is a breach of the general principles of
international law”.

The point raised here has not yet been fully argued by the
Parties, and cannot, therefore, be decided at this stage.

24
46 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

For these reasons,
THE Court,

adjudicating on the Preliminary Objection filed by the Gov-
ernment of the United Kingdom of Great Britain and Northern
Ireland to the Application of the Royal Hellenic Government,

by thirteen votes to two,

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

by ten votes to five,

finds that it has jurisdiction to decide whether the United
Kingdom is under an obligation to submit to arbitration, in accord-
ance 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.

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
will be transmitted to the Royal Hellenic Government and to the
Government of the United Kingdom of Great Britain and Northern
Ireland, respectively.

(Stgned) J. G. GUERRERO,

Vice-President.

(Signed} E. HAMBRO,

Registrar.

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47 JUDGMENT OF I VII 52 (AMBATIELOS CASE)

Judge Levi CARNEIRO and M. Sprropoutos, 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.

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

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.

(Initialled) J. G. G.
(Initialled) E. H.

26