PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SÉRIE B — IV 10
Le 21 février 1925

RECUEIL DES AVIS CONSULTATIFS

ÉCHANGE DES POPULATIONS
GRECQUES ET TURQUES

(CONVENTION VI DE LAUSANNE, 30 JANVIER 1923, ARTICLE 2)

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B — No. 10
February 21st, 1925

COLLECTION OF ADVISORY OPINIONS

EXCHANGE OF GREEK
AND TURKISH POPULATIONS

(LAUSANNE CONVENTION VI, JANUARY 3oth, 1923, ARTICLE 2)

A. W. Sijthoft’s
Publishing Company

Société d’Editions
A. W. Sijthoff

Leyde Leyden

. PERMANENT COURT OF INTERNATIONAL JUSTICE.
1925.
February 21st.

File F. c. XI.
Docket VE 1.

SIXTH (EXTRAORDINARY) SESSION
Present:

MM. Huser, President,
Loper, Former President,
Weiss, Vice-President,

Lord FINLAY,

MM. NYHOLM,
ALTAMIRA,
ODA,

ANZILOTTI, Judges.
YOVANOVITCH,
BEICHMANN,

NEGULESCO. 5

—~

ADVISORY OPINION No. 10.

EXCHANGE OF GREEK AND TURKISH POPULATIONS .
(LAUSANNE CONVENTION VI, JANUARY 30TH, 1923, ART. 2)

On December 13th, 1924, the Council of the League of Nations
adopted the following Resolution :

“The Council of the League of Nations, having been asked
by the Mixed Commission for the Exchange of Greek and
Turkish populations to obtain from the Permanent Court of
International Justice an Advisory Opinion on the dispute
regarding the interpretation of Article 2. of the Convention
on the Exchange of Greek and Turkish populations, signed
at Lausanne on January 30th, 1923, has decided to ask the
ADVISORY OPINION No. IO 7

Permanent Court of International Justice to give an advisory
opinion on the following question :

‘What meaning and scope should be attributed to
the word “established” in Article 2 of the Convention of
Lausanne of January 30th, 1923, regarding the exchange
of Greek and Turkish populations, in regard to which
discussions have arisen and arguments have been put
forward which are contained in the documents commun-
icated by the Mixed Commission? And what conditions
must the persons who are described in Article 2 of the
Convention of Lausanne under the name of “Greek
inhabitants of Constantinople” fulfil in order that they
may be considered as “established” under the terms of
the Convention and exempt from compulsory exchange ?”

“The Council invites the Mixed Commission and the two
Governments represented thereon to be prepared to furnish
the Court with any documents or explanations it may require.
The Council has the honour to forward to the Court the docu-
ments which have been communicated to it, with the option
of subsequently adding further documents, if considered
necessary.

“The Secretary-General is authorized to submit this applic-
ation to the Court together with all the documents relative
to the question, to explain to the Court the action the Council
has taken in the matter, to give all the necessary assistance
for the examination of the case, and if necessary to take steps
to be represented before the Court.”

In accordance with this Resolution the Secretary-General of
the League of Nations, on December 18th, 1924, transmitted to
the Court a Request for an Advisory Opinion, in the following
terms :

“The Secretary-General of the League of Nations, ‘‘in pur-
suance of the Council Resolution of December 13th, 1924,
and in virtue of the authorization given by the Council,

“has the honour to submit to the Permanent Court of Inter-
national Justice an application requesting the Court, in accord-
ance with Article 14 of the Covenant, to give an advisory
ADVISORY GPINION No. IO 8

opinion to the Council on the question which has been referred

to the Court by the Resolution of December 13th, 1924.

“The Secretary-General will be prepared to furnish any

assistance which the Court may require in the examination of

the question, and will, if necessary, arrange to be represented
before the Court.”’

In accordance with Article 73 of the Rules of Court, notice of
the Request was given to Members of the League of Nations through
the Secretary-General, and to the States mentioned in the Annex
to the Covenant. Notice was also given to the Government of
Turkey, as being a State likely to be able to furnish information on
the question, and to the Mixed Commission for the Exchange of
Greek and Turkish Populations, sitting at Constantinople.

Owing to the fact that the question in regard to which the Court’s
opinion had thus been asked was, by the nature of things, extremely
urgent, the President decided to exercise the powers conferred
upon him under Article 23 of the Statute and to convoke an extra-
ordinary session of the Court, commencing on January 12th, 1925.

The Greek and Turkish Governments, at the invitation of the
Court, each submitted within the time fixed a Memorandum on the
question of the interpretation of Article 2 of the Convention regard-
ing the exchange of Greek and Turkish populations signed at
Lausanne on January 30th, 1923!; and the Court heard, in the
course of public sittings held on January 16th, 1925, oral statements
upon the question made, on behalf of the Government of the
Greek Republic, by H.E. M. Politis, Greek Minister at Paris, and, on

- behalf of the Government of Turkey, by Dr. Tevfik Rouchdy Bey,
President of the Turkish Delegation to the Mixed Commission at
Constantinople.

The above-mentioned Council Resolution had its origin in the
following telegram sent on November 19th, 1924, to the Secretary-
General of the League of Nations by the President of the Mixed
Commission :

! The dossier to which reference is made below already included pro-
visional Memoranda prepared by the two interested Governments and
intended for the Court, namely, a Greek Memorandum dated November
3oth, 1924, and a Turkish Memorandum dated December th, 1924.
ADVISORY OPINION No. I0 9

{ Translation. |

“Have the honour inform you that the Mixed Commission, at
its sitting of November 16th, decided, in conformity with the latter
part of the conclusions of Viscount Ishii’s report to Council of
League at Brussels dated October 31st, to appeal to the good offices
of Council in order to obtain from the Hague Court of Justice an
advisory opinion on the dispute regarding Article 2 Lausanne
Convention stop Relevant dossier follows.”

The dossier in question was transmitted by the President of the
Mixed Commission to the Secretary-General under cover of a letter
‘despatched from Constantinople on December 6th, 1924; they were
‘received by the Registry of the Court on December 2oth.1

I.

Having regard to the reference made in the Request to the dis-
‘cussions and arguments contained in the dossier submitted by the
Mixed Commission and concerning the word “‘established’’, before
proceeding further, this dossier. must be analysed with a view to
tracing the history of the divergence of opinion with which the
Court is concerned.

In the course of the negotiations for the establishment of peace
with Turkey conducted at Lausanne during 1922 and 1923, amongst
other diplomatic instruments, was concluded a Convention con-
cerning the exchange of Greek and Turkish populations. This
Convention, which was signed at Lausanne on January 30th, 1923,
by the Greek and Turkish delegates, came into effect after the
ratification by Greece and Turkey of the Peace Treaty of July
24th, 1923, viz. on August 6th, 1924.

Article 1x of this Convention provides for the setting up, within
one month from its coming into force, of a Mixed Commission
composed of four members representing each of the High Contract-
ing Parties and three members chosen by the Council of the League
of Nations from amongst nationals of Powers which did not take
part in the war of 1914-1918. The neutral members were appointed
by the Council on September 17th, 1923, and the Mixed Commission
‘entered upon its task.

1 See list of documents in the Annex, page 27.
ADVISORY OPINION No. 10 Bae)

The Mixed Commission’s duties, under Article 12, were, amongst
other things, to supervise and facilitate the emigration provided
for in the Convention and to settle the methods to be followed.
Generally speaking, it has full power to take the measures neces-
sitated by the execution of the Convention and to decide all ques-
tions to which this Convention may give rise.

The principle governing the emigration in question is laid down
in the first article of the Convention as follows :

“As from May Ist, 1923, there shall take place a com-
pulsory exchange of Turkish nationals of the Greek Orthodox
religion established in Turkish territory, and of Greek nationals
of the Moslem religion established in Greek territory.

These persons shall not return to live in Turkey or Greece
respectively without the authorization of the Turkish Govern-
ment or of the Greek Government respectively.”

The word “established” already appears in this article. But it
is with regard to the meaning and scope of this word as used in
Article 2 that the Court’s opinion is desired ; this article runs as
follows :

“The following persons shall not be included in the exchange
provided for in Article 1:

(a) The Greek inhabitants of Constantinople.

(b) The Moslem inhabitants of Western Thrace.

All Greeks who were already established before the
30th October, 1918, within the areas under the Prefecture
of the City of Constantinople, as defined by the law of 1912,
shall be considered as Greek inhabitants of Constantinople.

All Moslems established in the region to the east of the
frontier line laid down in 1913 by the Treaty of Bucharest
shall be considered as Moslem inhabitants of Western Thrace.”

According to the documents submitted to the Court (31st Session
of the Council of the League of Nations, fourth public sitting),
it appears that difficulties with regard to the interpretation of
Article 2 of the Convention of January 30th, 1923, arose in the first
place between the Greek and Turkish Delegations to the Mixed
Commission ; these decided by common agreement to submit
ADVISORY OPINION No. I0 II

their divergent views to the Commission in order that the dispute
might be settled by that body. The two delegations therefore
prepared Memoranda which they submitted to the members of the
Commission, These members in their turn drew up an “opinion
in regard to the meaning of Article 2 of the Convention concerning
the exchange of Greek and Turkish populations signed at Lausanne
on January 30th, 1923.”

All three documents were read at the full meeting of the Commis-
sion held on September 4th, 1924.

It appears both from the minutes of this meeting and from the
text of the Greek and Turkish Memoranda that the discussion and
arguments put forward with regard to the interpretation of the
word “‘established” bore at that time mainly on the following
points :

(a) the question whether Article 2 of the Convention was a mere
exception to Article 1, or whether, on the contrary, it laid down
the principle of non-liability to exchange within its own sphere
of application ;

(6) the question whether, in the second alternative, the prin-
ciple contained in Article 2 would apply to certain territories
or to certain categories of persons ;

(c) the grammatical meaning of the word “established”, more
particularly as compared with the word “domiciled” ;

(d) the value of local legislation as a factor for the interpretation
of the word “‘established” ; in particular the Turkish laws of June
16th, 1902 and August-r4th, 1914, called Noufouz ;

(e) how far the Mixed Commission and the municipal tribunals
respectively are competent to apply the criterion of ‘‘establish-
ment”.

At the following meeting of the Mixed Commission held on
September 8th, it was proposed that the question of the interpret-
ation of Article 2 of the Convention should be referred to the Legal
Section of the Commission. It was not however until the next
meeting on September 15th, that it was decided to take this course.
At the same time the hope was expressed that the Legal Section:
would conclude its study of the matter as soon as possible.

The Legal Section’s deliberations ended on October 1st, on which
date it submitted a report signed by its Chairman to the full Com-
mission.
ADVISORY OPINION No. IO I2

This report contains in the first place the text of a decision
adopted unanimously by the members of the Section, and this is
followed by a draft resolution which, according to the report, the
Legal Section had also decided to adopt, but only by a majority
consisting of the neutral President and the Greek members.

f Translation. |

The Legal Section’s Resolution with reference to the word

“established” runs as follows:

“The following persons shall be considered as established
im any area exempt from exchange under Article 2 of the
Convention : |

“(z) Any inhabitant of these areas who is entered in the
public registrar's books or who is included in the census of
these areas ;

'“(2) Any person possessing in these areas a fixed residence,
with the intention of remaining there permanently. This
intention may be inferred from a number of circumstances,
such as, for instance, the permanent exercise of a profession,
commerce or industry or the acquisition of a practice in con-
formity whith the laws ; further, the fact of having concluded
a contract for work of considerable duration, or of having
entered upon a profession the nature of which would, in a
general way, imply a residence of some length in the district, or
any other fact tending to prove that the centre of such person’s
occupation and interests is situated in the area in question.

“Tt shall be the duty of the Mixed Commission to take
decisions in regard to the persons liable to exchange.

“The status of married women, widows and minors shall
be the same as that of their husbands or fathers. This applies
equally to fathers and mothers who, in accordance with the
law and local custom, are dependent upon their children.”

The Mixed Commission, having received the report of its Legal
Section, was to hold a plenary meeting on October 2nd, in order
to-consider it. This meeting however could not be held.

Meanwhile and up till October 21st, the authorities of Constan-
tinople—according to the report of the competent Sub-Committee
of the Mixed Commission —‘"sent ‘to the hospitals at Baloukli,
under police escort, something like 4.500 Greeks who, according to

2
ADVISORY OPINION No. 10 13

the lists prepared by the various areas of the Prefecture of the
City, were shown as arrived after October 3oth, 1918”.

After representations had been made to the Vali by the competent
international authority, these measures were stopped. They had
however already given rise to representations on the part of the
President of the Greek Delegation to the Mixed Commission to
the President of that Commission, and subsequently to a letter
sent by the Greek Chargé d’affaires at Berne to the Secretary-
General of the League of Nations on October 22nd, 1924. In this
letter, the Greek Government, in virtue of Article rr ofthe Covenant
appeals to the League of Nations to include the question raised by
the measures referred to upon the agenda cf the session of the
Council to be held on the 27th of the same month The Greek .
Government, though chiefly relying on Article rr, also, according
to this letter, considered that Article 14 of the Covenant was sub-
sidiarily applicable.

The Council granted this request and included the question on
the agenda of its 31st session, and, in agreement with the represent-
atives of the two interested Governments, adopted a report on the
subject inviting the Mixed Commission to hold a plenary meeting
as soon as possible in order that the points at issue with regard to
the Convention might be finally settled. At the same time the
Rapporteur, Viscount Ishii, added :

“Should the Members of the Commission. feel, however, that
there are in the Convention points of great legal difficulty, which
they doubt whether they have sufficient juridical knowledge to
interpret, it is always open to them to ask the two Governments
signatories of the Convention to place the matter before the Court
of International Justice, one of whose special duties it is to under-
take the interpretation of treaties. The Council, too, would, I
feel sure, be willing, should the Mixed Commission desire it, to ask
the Court for an advisory opinion on such points. If any such
action is taken, it would, of course, be necessary that, pending a
pronouncement by the Court, nothing should be done which would
prejudice in any way the personal and material interests of the
populations, which may be affected directly or indirectly by
the decision taken.” ' .

The report from which this quotation is taken is dated October

31st, 1924.
| ADVISORY OPINION No. 10 14

It was laid before the Mixed Commission at a full meeting held
on November 15th. On this occasion the question of the inter-
pretation of Article 2 of the Convention of Lausanne was once
more thoroughly discussed, more especially in the light of the
report dated October ist submitted by the Commission’s Legal
Section.

During the discussions, it appeared that the difference of opinion
still existed, at all events to a great extent. At the same time
an argument, which had not hitherto been considered by the
Commission though referred to before the Council by the Turkish
representative, was put forward. It concerned the effect of
Article 3 of the Convention of January 30th, 1923, upon the inter-
pretation of Article 2 of the same Convention and related to
the question whether, under Article 3, Greeks who had since
1912 left the territory mentioned in Article 1 and who had been
in Constantinople since October 18th of that year, should be
regarded as liable to exchange.

Article 3 of the Convention is as follows :

“Those Greeks and Moslems who have already, and since the
18th October, 1912, left the territories the Greek and Turkish
inhabitants of which are to be respectively exchanged, shall
be considered as included in the exchange provided for in
Article I.

“The expression ‘emigrant’ in the present Convention
includes all physical and juridical persons who have been
obliged to emigrate or have emigrated since the r8th
October, 1912.”

The question of the position of the Œcumenical Patriarchate
and the personnel attached thereto which was also mentioned before
the Council, but by the Greek representative, was not raised in the
Mixed Commission.

At the following meeting held on November 16th, the President
of the Commission declared that the full Commission was unan-
imously agreed to request the Council of the League of Nations
to obtain from the Permanent Court of International Justice at
The Hague an advisory opinion on the dispute which häd arisen
regarding the interpretation of Article 2 of the Convention of
Lausanne. |
ADVISORY OPINION No. 10 | I5

In pursuance of this decision the President of the Commission
sent to the Secretary-General of the League of Nations the telegram
which is reproduced at the beginning of this opinion.

The views of the Greek Government were definitely presented
by H.E. M. Politis in his address as follows :

“(r) That the word ‘established’ means inhabitants of Cons-
tantinople who had taken up their residence there before Octo-
ber 30th, 1918, with the intention of habitually residing there.

“(2) That, to be exempt from exchange, a person must
have arrived at Constantinople before October 30th, 1918,
irom any other place whatsoever, whether from another
part of Turkey or a foreign country, and, also before that
date, have manifested, either by an official formality or by
some unequivocal fact such, for instance, as the exercise of
à permanent profession, trade, industry, etc., or in any other
similar manner, the value of which the Mixed Commission —
which is sole judge—may estimate after consideration of any
evidence, written or oral, or on the basis of mere indications,
his intention to make it the centre of his interests and
occupations. _

“(3) That, furthermore, quite apart from any question
of establishment at Constantinople, Prelates of the Orthodox
Church who, by reason of their functions, must reside there to
carry on the services of the Œcumenical Patriarchate under
the conditions agreed upon at Lausanne on January roth,

' 4923, between Turkey and the Allied Powers, are also exempt
from exchange.”

Tevfik Rouchdy Bey made no express submissions, but in the
Memorandum presented on January roth, 1925, on behalf of the
Turkish Government, he gave the following summary of his views:

“There is in Turkey a law regarding persons “established”.
This law applies without distinction to minorities as well
as to the majority of the country. It is obvious that to
attempt for any reason to suspend the application of this law
to any portion of the citizens of a country is tantamount to
granting such citizens a privilege and also to an infringement
of the rights of other minorities and of the majority. Untilit is
ADVISORY OPINION No. TO 16

proved that under the terms of the Convention this law must be
modified or suspended, it cannot be touched without infringing
the sovereign rights of Turkey and the Turkish nation.

“Tt is admitted that the fact of having failed to fulfil a form-
ality does not involve the loss of vested rights. But, on the
other hand, these vested rights cannot exist in the absence of
certain essential conditions connected with them. Furthermore,
the procedure for making good this omission must be carried out
by the Government concerned, which must have regard to its
own relevant legislation, and the situation of fact must
be established by proving before the Courts of the country
that certain conditions exist, as provided in the Minutes
annexed hereto}, which relate to this very expression
“established”. Apart from these conditions, any décision
or act involving the non-observance of the laws of a
country by its citizens, will lead to administrative anarchy
and may affect the domestic peace of the country con-
cerned.

“No Government can admit the modification or suspen-
sion of laws other than those clearly contemplated in
instruments which it- has signed, and to expect it to do
so would be to overstep the limits of the obligations |
entered into by it.”

In his address to the Court, Dr. Tevfik Rouchdy Bey contended
that the ‘question of the (Ecumenical Patriarchate which is a
matter of Turkish domestic policy, had not been properly referred
to the Court and should not therefore be dealt with by it.

In the discussions which have taken place in the Mixed Commis-
sion, before the Council of the League of Nations and before the Court,
what is known of the work done preparatory to the Convention
of January 30th, 1923, has played a very important part. The
Court is however of opinion that there is no need for them, in the
present opinion, to give a general survey of this work. They
will only refer to it in so far as they consider it absolutely necessary |
to do so in the course of the following juridical examination of the
question before the Court.

' Minutes of first meeting of 3rd Sub-Committee of Second Committee
(Régime des étrangers) of the Lausanne Conference.
ADVISORY OPINION No. IO 17

IL.

The Council of the League of Nations in the Request addressed
by it to the Court asks two questions which, in form, are quite
distinct from each other. The Court, however, considers that they
are very closely connected. The second question asks “what
conditions must the persons who are described: in Article 2 of the
Convention of Lausanne under the name of “Greek inhabitants
of Constantinople” fulfil in order that they may be considered: as
“established” under the terms of the Convention and exempt from
compulsory exchange ?”’ The Court is of opinion that the chief aim
of this question is to develop and to obtain a statement of the pre-
cise practical effect of certain aspects of the reply. given by it to
the first, namely, “what meaning and scope should be attributed to
the word “‘established” in Article.2 of the Convention of Lausanne
of January 30th, 1923, regarding the exchange of Greek .and
Turkish populations ?”’ '

The Request makes no reference to the special position of ‘the
(Ecumenical Patriarchate of Constantinople resulting, according
to the oral statements of H.E. M. Politis, from, amongst other
things, the investiture decrees known as bévats given to the
successive Patriarchs and from the agreement said to have been
reached at Lausanne on January roth, 1923, between Turkey and
the Allied Powers. The Council, if it had wished also to obtain
the Court’s opinion on this point, which was the subject of
discussion at Lausanne,* would not have failed to say so in
terms. In these circumstances the Court does not consider that it
has cognizance of this question.

The Court has not to define the meaning and scope of the word
“established” in the abstract, but only to determine the meaning
and scope of that word as used in Article 2 of the Convention of
Lausanne. In the first place the Court is satisfied that the difference of
opinion which has arisen regarding the meaning and scope of the word
“established’’, is a dispute regarding the interpretation of a treaty
and as such involves a question of international law. . It is not a
question’ of domestic concern between the administration and the
inhabitants ; the difference affects two States which have concluded
a Convention with a view to exchanging certain portions of their
ADVISORY OPINION No. IO 18

populations, and the criterion afforded by the word “established”
used in Article 2 of this Convention is precisely intended to enable
the contracting States to distinguish the part of their respective
populations liable to exchange from the part exempt from it.

The Convention, after having laid down in Article x the general
principle of the exchange of Turkish nationals of Greek orthodox
religion established in Turkey and Greek nationals of Moslem
religion established in Greece, proceeds in Article 2 to withdraw.
from this exchange, on the one hand, Greek inhabitants
of Constantinople and, on the other, Moslem inhabitants of Western
Thrace.

This restriction was placed upon the application of the principle
of exchange for several reasons. As regards the Greek inhabitants
of Constantinople, one reason amongst others was to save that city
from the loss which it would have suffered as a result of the exodus
of a part of the population which constitutes one of the most
important economic and commercial factors in the life of the city.

It is therefore the Greek population of Constantinople which it was
intended to exempt from compulsory exchange, and this is clearly
indicated by the words ‘‘Greek inhabitants of Constantinople”.

As, however, Turkey, for reasons which do not concern the Court,
did not wish to be compelled to retain at Constantinople Greeks
who had migrated there after the date of the armistice of Mudros,
the Convention refers not to the whole of the Greek population
of Constantinople as it at present exists, but only to those members
of it who were such also on October 30th, 1918.

The Court will now, in the light of these considerations, proceed
firstly to consider the meaning and scope of the word édablis in
general, and, secondly, the question whether the situation con-
templated by this word should be determined according to the
laws in force in the two countries concerned.

The Convention was drawn up in French and therefore regard
must be had to the meaning of the disputed term in that language.
In this respect it appears certain that. éablissement, according both
to the etymology of this word—the noun corresponding to the
verb éabliy—and to the current practice of the language, embraces
two essential factors: residence and stability, i.e. an intention to
continue the residence in a particular place for an extended period.
ADVISORY OPINION No. 10 IG

In the present case, the word ‘established’ having been used to
describe a portion of the Greek inhabitants of Constantinople, natu-
rally embraces those inhabitants who, on October 30th, 1918, were
already residing at Constantinople with the intention of remaining
there for an extended period.

An:idea akin to that just expressed in order to define-the
conception of establishment, is the basis of the conception of
domicile in several modern legal systems. But it in no way
follows, as has sometimes been maintained on behalf of the Turkish
Government, that the two expressions have the same meaning. At
times the word “domicile” is used to describe a situation of fact
similar to that contemplated by the word ‘establishment’. : If,
however, the word domicile is used in a technical sense, and therefore
in connection with some particular system of law, it will be seen
that there are or may be cases in which the two conceptions of
domicile and establishment have not the same meaning. The
question whether a provision refers to a mere situation of fact or to
domicile in the legal sense of the term is a question of interpretation.

From this point of view, therefore, it becomes necessary to con-
sider whether the Convention contains any express or implicit
reference to national legislation for the purpose of determining what
persons are to be regarded as “‘established’’.

No express reference is to be found; it remains to be ascertained
whether in regard to the matter before the Court, the Convention
makes implicit reference to national legislation.

It should in the first place be observed that it does not necessarily
follow that, by reason of the nature of the situation contemplated
in the Convention, there must be an impliéd reference to national
legislation. Whereas the national status of a person belonging. to
a State can only be based on the law of that State, and whereas,
therefore, any convention dealing with this status must implicitly
refer to the national legislation, there is no reason why the local
tie indicated by the word “‘established’’ should be determined by
the application of some particular law. It may very well be that
the Convention contemplated a mere situation of fact, sufficiently
defined by the Convention itself without any reference to national
legislation.

The Court is of opinion that this is the case as regards the condition
implied by the word ‘‘established’”’ in Article 2 of the Convention.
As has been:said above, the word “established’’, taken in-conjunc-
ADVISORY OPINION No. IO 20

tion with the references to date and place indicated in this article,
is to serve to distinguish between the exchangeable and the non-
exchangeable parts both of the Greek population of Constantinople
and of the Moslem population of Western Thrace. It is hardly
likely that the intention was to fix this criterion by means ofa refer-
ence to national legislation. It is a well-known fact that the legis- °
lation of different States takes into account various kinds of local
personal ties and deals with them in different ways. The application
of Turkish and Greek law would probably have resulted in uncer-
tainties, difficulties and delays incompatible with the speedy ful-
filment always regarded as essential to the Convention under con-
sideration. Moreover, it might well happen that a reference to
Turkish and Greek legislation would lead to the division of the popu-
lation being carried out in a different manner in Turkey and in
Greece. This, again, would not be in accordance with the spirit
of the Convention, the intention of which is undoubtedly to ensure,
by means of the application of identical and reciprocal measures
in the territory of the two States, that the same treatment is accor-
ded to the Greek and Turkish populations. Nor is there any indica-
tion that the authors of the Convention, when they adopted the
word which has given rise to the present controversy, had in mind
national legislation at all. Everything therefore seems to indicate
that, in regard to this point, the Convention is self-contained and
that the Mixed Commission in order to decide what constitutes
an established inhabitant must rely on the natural meaning of the
words as already explained.

The Turkish Delegation however maintains that the Convention
contains a reference to national legislation and in support of this
contention invokes amongst other things Article 18, according to
which : |

“The High Contracting Parties undertake to introduce in
their respective laws such modifications as may be necessary
with a view to ensuring the execution of the present Convention.”

This clause, however, merely lays stress on a principle which is
self-evident, according to which a State which has contracted valid
international obligations is bound to make in its legislation such
modifications as may be necessary to ensure the fulfilment of the
obligations undertaken. The special nature of the Convention for
the Exchange of Greek and Turkish Populations, which closely

3
ADVISORY OPINION No. IO ar

affects matters regulated by national legislation and lays down prin-
ciples which conflict with certain rights generally recognized as
belonging t6 individuals, sufficiently explains the express inclusion
of a clause such as that contained in Article 18. But it does not in
the least follow because the contracting Parties are obliged to bring
their legislation into harmony with the Convention, that that instru-
ment must be construed as implicitly referring to national legisla-
tion in so far as that is not contrary to the Convention.

Is is true that in the course of the oral proceedings Dr. Tevfik
Rouchdy Bey also pointed out that the fact that a criterion was
sought in order to fix the meaning of the word “established’’ showed
that that word represented a legal conception. He drew the conclu-
sion that such a criterion could only be found in the national legisla-
tion of the contracting States. In reply to this argument it may be
observed that if an expression, not in itself of a legal nature, is used
in a convention which derives legal consequences from it, it does
not in the least follow that this criterion must be sought in the legis-
lation of the respective contracting States.

Again, the objection of the Turkish Delegation to the effect that
the non-application of national legislation would lead to inequality
in the treatment of various categories of Turkish nationals, inhab-
iting Constantinople, does not go far ; for if a person is recognized
to be exempt from exchange under the terms of the Convention of
1923, he clearly remains subject to Turkish law in regard to all
matters save those connected with the question of liability to
exchange.

The principal reason why the Turkish Delegation has maintained
the theory of an implicit reference to local legislation appears to be
that, in their opinion, a contrary solution would involve consequences
affecting Turkey’s sovereign rights. But, as the Court has already
had occasion to point out in its judgment in the case of the Wimble-
don, “the. right of entering into international engagements is an
attribute of State sovereignty”. In the present case, moreover,
the obligations of the contracting States are absolutely equal and
reciprocal. It is therefore impossible to admit that a convention
which creates obligations of this kind, construed according to
its natural meaning, infringes the sovereign rights of the High
Contracting Parties.

Having thus made it clear that the Convention does not refer
to national laws, the Court does not feel it to be necessary to
‘

ADVISORY OPINION No. IO 22

consider whether any particular provisions of the Turkish laws
of 1902 and 1974 are or are not contrary to the Convention.

The Turkish Delegation has maintained, again basing its arguments
on sovereign rights, that it should be for the municipal courts
to decide, if need be, whether a person is established or not within
the meaning of Article 2. But as has been said, national sovereignty
is not affected by the Convention in question. Now this Conven-
tion, in Article 12, confers upon the Mixed Commission “‘full
power to take the measures necessitated by the execution of the
present Convention and to decide all questions to which this
Convention may give rise”. Moreover, to refer questions to the
municipal courts would be hardly compatible with the rapid fulfil-
ment of the provisions of the Convention which, as has already
been stated, has always been regarded as necesgitated by the nature
and aims of that instrument.

Again, the Mixed Commission by its decision of April 4th, 1924,
had already affirmed that it has exclusive jurisdiction to determine
the nationality of persons liable to exchange : and it does not appear
that in this respect any protest or reservation was made by either
of the governments concerned. It is not easy to see why the Mixed
Commission should have exclusive jurisdiction in questions of
nationality, which must undoubtedly be settled by applying
national law, and should not have such jurisdiction for the
purpose of verifying the existence of the other conditions laid down
in Article 2 of the Convention.

The Mixed Commission, therefore, is alone competent to investi-
gate, in each individual case, whether a Greek inhabitant of Cons-
tantinople is ‘‘established’ in conformity with Article 2 of the
Convention and can be exempted from the compulsory exchange.

The Turkish Delegation laid great stress on the words of
M. Fromageot who, it is said, on being questioned by Chukri Bey ?,
admitted the competence of the Ottoman courts in regard to the
question of establishment.

M. Fromageot’s reply, however, referred to , the establishment
in territories detached from Turkey of Turkish nationals whose
nationality was affected by the transfer of territory. But this
question is dealt with in Article 30 and the following articles of
the Peace Treaty signed at Lausanne on July 24th, 1923.

! Minutes of the first meeting of the 3rd Sub-Committee of the 2nd Com-
mittee (Régime des étrangers) of the Conference of Lausanne.
ADVISORY OPINION No. I0 23

This, however, is a different instrument dealing with another mat-
ter and establishing no such international organization as the Mixed
Commission provided for in Article 11 and the following articles
of the Exchange Convention. It follows that no argument in favour
of the Turkish contention can be drawn from M. Fromageot’s
words.

EL.

As regards the second part of the question referred to the Court,
concerning. the conditions to be ‘fulfilled by Greek inhabitants of
Constantinople in order that they may be considered as “established”
and exempt from compulsory exchange, the Court wishes to keep
within the scope of the discussions and arguments set forth in
the dossier placed before it. Indeed, the Court considers that it is
neither called upon to prepare in advance solutions for all the pro-
blems which may arise in regard to the application of Article 2
of the Convention of January 30th, 1923, and further, that it is not
in possession of sufficient information to be able to do so. For
instance, the Court has no information as to the possible existence
of persons who, whilst possessing offices etc. in Constantinople,
may reside with their families in the neighbourhood of that city.

The question is one of making a distinction, as regards the Greek
population of Constantinople as it was at the time of the Convention,
between inhabitants established there before October 30th, 978,
and the others, those not yet established at that date.

It may be said that the word “‘established’’ as used in Article - 2
serves no other purpose than to indicate that the article relates
to the inhabitants of a certain place upon a certain date. Neverthe-
less the choice of this word “established” serves to emphasize that,
in order that a person may be considered as an inhabitant, his
residence must be of a lasting nature and must have been so at the
time in question. Persons who at that time were only residing at
Constantinople as mere visitors cannot therefore be regarded as
exempt from exchange.

The degree of stability required is incapable of exact definition.
The Court however considers that inhabitants who before October
30th, 1918, fulfilled the conditions enumerated as examples under
heading (2) of the Resolution adopted on October ist, 1924, by
the Legal Section of the Mixed Commission (see p. 12), are to be
ADVISORY OPINION No. IO 24

regarded as established within the meaning of the article and as
consequently exempt from exchange, even if they have come to
Constantinople with the intention of making their fortune and
subsequently returning to their place of origin. During their
residence in Constantinople they must be regarded as established,
since they present the character of stability which is the condition
necessary to constitute “establishment”.

As has already been observed, the Court cannot foresee all the
various cases with which the Mixed Commission may be confronted.
It considers that in the absence of sufficient materials in the discus-
sions and arguments submitted to it, it must abstain from providing
concrete solutions for the complex problems which may arise on
the application of Article 2 to persons who, though belonging to
one family, do not individually satisfy the conditions laid down in
that article. The powers conferred upon the Mixed Commission
by Article 12 enable that body, within the limits fixed by the clauses
of the Convention, to find an equitable solution for any disputed

.points. The Convention is silent on the question of the unity of
the family. Ifin these circumstances the definition adopted by the
Court in order to determine which inhabitants are to be considered
established, might appear to lead under certain conditions, as
regards families, to unreasonable or manifestly unjust consequences,
the silence of the Convention cannot be construed as depriving
the Mixed Commission of its right to consider how far the Conven-
tion must be presumed to give to the criterion of establishment,
according to the conditions of time and place laid down in Article 2,
preponderance over the family ties in question.

No restriction as to place of origin is mentioned in Article 2,
so that it is clear that Greek inhabitants of Constantinople, no
matter where they come from, are exempt from the compulsory
exchange, provided they fulfil the conditions laid down in Article 2
of the Convention.

The Turkish Delegation claimed in the Mixed Commission that,
under Article 3, Greeks of Constantinople coming from districts
to which the exchange applies, who arrived at Constantinople after
October 18th, 1912, are exchangeable.

This contention—if indeed it is to be regarded as maintained
after the statements made in Court by Dr. Tevfik Rouchdy Bey—is
based on a misinterpretation of the meaning of Article 3 and of the .
provisions of Article 2.
ADVISORY OPINION No. I0 25

It is evident that October 30th, 1918, is the determining date
fixed by Article 2 for all Greek inhabitants established at Constanti-
nople. It would therefore be contrary to any rational inter-
pretation indirectly to modify, as concerns some of them, this posi-
tive condition according to a date fixed in another article dealing
with a different situation. This would be still more inadmissible
because—according to statements submitted to the Court on behalf.
of.the Greek Government which have not been contradicted—the
application of the date October 18th, 1912, to Greek inhabitants
of Constantinople who established themselves there between that
date and October 30th, 1018, would deprive Article 2, which was
the ‘subject of long discussion at Lausanne, of a great part of its
practical value.

The same conclusion is reached—ruling out the Turkish argument
regarding the connection between Articles 2 and 3—if Article 3
be interpreted, as the Court considers justifiable, in the light of
Article 10 which expressly refers to persons “‘who have already left
- the territory of the High Contracting Parties’, 1.e., persons who
have emigrated to a foreign country. Now, it is precisely Article 3
which contains the definition of an emigrant and therefore the
_ expression “‘to leave the territories” in this article does not refer
to a movement of population within the State, but to emigration
to other countries.

The’ Court does not feel called upon to stop to consider the
question of the manner in which the existence of the conditions
which, under Article 2 of the Convention, must be fulfilled in
order that a person may be considered as established and exempt
from exchange, is to be proved before the Mixed Commission.
This question has not been discussed before the Court and it does
not appear from the dossier that it has givenrise to serious difficul-
ties in practice. It will suffice to say that, having regard to the very
wide powers possessed by the Mixed Commission, that body may
decide in each case as to the manner in which the fulfilment of
the conditions above mentioned is to be established.

FOR THESE REASONS,
The Court is of opinion:

1. That the purpose of the word “‘established” in Article 2 of the
Convention of Lausanne of January 30th, 1923, regarding the
ADVISORY OPINION No. IO 26

exchange of Greek and Turkish populations, is to indicate the
conditions in point of time and place on which depends the
liability to exchange of Greeks and Moslems who respectively
inhabit Constantinople or Western Thrace ; that this word refers
to a situation of fact constituted, in the case of the persons
in question, by residence of a lasting nature ;

2. That, in order that the persons referred to in Article 2
of the Convention of Lausanne as “Greek inhabitants of Constan-
tinople” may be considered as “established” under the terms of the
Convention and exempted from the compulsory exchange, they must
reside within the boundaries of the Prefecture of the City of Cons-
tantinople as defined by the law of 1912 ; have arrived there, no
matter whence they came, at some date previous to October 3oth,
1918 ; and have had, prior to that date, the intention of residing
there for an extended period.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-first day of February,
nineteen hundred and twenty-five, in two copies, one of which is to
be deposited in the archives of the Court, and the other to be for-
warded to the Council of the League of Nations.

(Signed) Max HUBER,
President.

(Signed) A. HAMMARSKJOLD,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ACTIVITÉS ARMÉES
SUR LE TERRITOIRE DU CONGO

(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. RWANDA)

ORDONNANCE DU 19 OCTOBRE 2000

2000

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING ARMED ACTIVITIES
ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO r. RWANDA)

ORDER OF 19 OCTOBER 2000

Mode officiel de citation:

Activités armées sur le territoire du Congo

(République démocratique du Congo c. Rwanda),

ordonnance du 19 octobre 2000, CEJ. Recueil 2000, p. 179

Official citation:

Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Rwanda),

Order of 19 October 2000, I.C.J. Reports 2000, p. 179

ISSN 0074-4441
ISBN 92-1-070879-2

N° de vente:

Sales number

802

19 OCTOBRE 2000

ORDONNANCE

ACTIVITÉS ARMÉES
SUR LE TERRITOIRE DU CONGO

(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. RWANDA)

ARMED ACTIVITIES
ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO r. RWANDA)

19 OCTOBER 2000

ORDER
2000
19 octobre
Rôle général
n° 117

179

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000

19 octobre 2000

AFFAIRE DES ACTIVITÉS ARMÉES
SUR LE TERRITOIRE DU CONGO

(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. RWANDA)

ORDONNANCE

Le président de la Cour internationale de Justice,

Vu l'article 48 du Statut de la Cour et les paragraphes 3 et 4 de l'article
44 de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 23 juin 1999, par
laquelle la République démocratique du Congo a introduit une instance
contre la République rwandaise au sujet d’un différend relatif à «des
actes d'agression armée perpétrés par le Rwanda sur le territoire de la
République démocratique du Congo en violation flagrante de la Charte
des Nations Unies et de la Charte de l'Organisation de l'unité africaine»,

Vu l'ordonnance du 21 octobre 1999, par laquelle la Cour, compte
tenu de l'accord intervenu entre les Parties au sujet de la procédure, ainsi
que de leurs vues quant aux délais à fixer, a décidé que les pièces de la
procédure écrite porteraient d’abord sur la question de la compétence de
la Cour pour connaître de la requête et sur celle de la recevabilité de cette
dernière, et a fixé, respectivement, au 21 avril 2000 et au 23 octobre 2000
les dates d'expiration des délais pour le dépôt du mémoire de la Répu-
blique rwandaise et du contre-mémoire de la République démocratique
du Congo sur ces questions,

Vu le mémoire de la République rwandaise déposé dans le délai ainsi
fixé;

Considérant que, par lettre du 6 octobre 2000, parvenue au Greffe le
même jour par télécopie, l'agent de la République démocratique du

4
180 ACTIVITES ARMEES (ORDONNANCE 19 X 00)

Congo a prié la Cour de proroger de quatre mois maximum le délai pour
le dépôt du contre-mémoire, et a indiqué les raisons à l'appui de cette
demande; et considérant que, dés réception de cette lettre, le greffier, se
référant au paragraphe 3 de l’article 44 du Règlement, en a fait tenir
copie à agent de la République rwandaise;

Considérant que le Gouvernement de la République rwandaise n’a pas
fait objection à la prorogation de délai sollicitée par la République démo-
cratique du Congo,

Reporte au 23 janvier 2001 la date d’expiration du délai pour le dépôt
du contre-mémoire de la République démocratique du Congo;
Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le dix-neuf octobre deux mille, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République démocra-
tique du Congo et au Gouvernement de la République rwandaise.

Le président,
{Signé} Gilbert GUILLAUME.

Le greffier,
(Signé) Philippe COUVREUR.


                     44

                                      DECLARATION OF JUDGE TOMKA

                     [Original English Text]

                        Second preliminary objection — Jurisdiction ratione materiae — Question
                     whether “third country measures” fall within the scope of the Treaty of Amity —
                     Court departing radically from the approach set out in its prior case law relating
                     to the same bilateral treaty.

                         1. The way the Court has treated the second preliminary objection
                     raised by the United States calls for some observations.
                         2. According to this objection, Iran’s claims brought under the provisions
                     of the Treaty of Amity that are predicated on “third country measures”
                     fall outside the Court’s jurisdiction which, according to the Appli
                     cant, is based on Article XXI, paragraph 2, of the bilateral Treaty of
                     Amity concluded by the Parties in 1955.
                         The United States specified that its objection on “third country
                     measures” concerns three categories of measures, namely those relating
                      to
                       (i) the reimposition of certain sanctions provisions under United States
                           statutes that had been waived pursuant to the Joint Comprehensive
                           Plan of Action (these provisions concern sanctions against non‑US
                           persons that engage in trade with Iran or Iranian companies and
                           nationals);
                      (ii) the reinstatement, through issuance of Executive Order 13846, of
                           certain sanctions authorities that were previously terminated (they
                            concern sanctions against non‑US persons that engage in trade with
                            Iran or Iranian companies and nationals); and
                     (iii) the relisting of certain persons on the Department of the Treasury’s
                            Specially Designated Nationals and Blocked Persons List (or SDN
                            List, which identifies natural or legal persons from specially desig-
                            nated countries or subject to a block on assets).
                        3. The Respondent argues that the Treaty of Amity “was not
                     intended to, and does not, impose obligations on the United States con-
                     cerning trade or transactions between Iran and a third country or between
                     their nationals and companies” 1. In the Respondent’s view, therefore,
                     Iran’s claims that the United States breached its obligations under
                     the Treaty of Amity by adopting measures concerning trade or transac-
                     tions between Iran and a third country (or their nationals and

                       1 Preliminary Objections submitted by the United States of America (hereinafter

                     “POUS”), pp. 94‑95, para. 7.3.

                     39

5 Ord_1215.indb 84                                                                                20/05/22 13:08

                     45 	                  1955 treaty of amity (decl. tomka)

                     companies), must be dismissed at a preliminary stage as outside the
                      Court’s jurisdiction 2.

                       4. Iran, in its Application, claims that these measures constitute
                     breaches of the United States’ obligations under Article IV, paragraph 1,
                     Article VII, paragraph 1, Article VIII, paragraphs 1 and 2, Article IX,
                     paragraph 2, and Article X, paragraph 1, of the Treaty of Amity. In its
                     Memorial, Iran further expands this list of allegedly breached obligations
                     by adding those under Article IV, paragraph 2, and Article IX, para-
                     graph 3, of the Treaty of Amity.

                        5. Although the Parties devoted much attention, both in their written
                     pleadings 3 and during the hearings 4, to the analysis of these provisions,
                     the Court refrains from analysing and interpreting them and, after a short
                     discussion, in some seven paragraphs, concludes that “the second pre-
                     liminary objection of the United States relates to the scope of certain obli-
                     gations relied on by the Applicant . . . and raises legal and factual
                     questions which are properly a matter for the merits” (Judgment,
                     para. 82). The Court states that “such matters would be decided . . . at
                     [the merits] stage, on the basis of the arguments advanced by the Parties”
                     (ibid.). To determine “the scope of certain obligations relied on by the
                     Applicant” is nothing else than to interpret the provisions of the Treaty
                     invoked by Iran as a source of such alleged obligations. The Court has
                     been provided with sufficient information and arguments by both Parties
                     in order to resolve this interpretative issue already at this stage of the
                     proceedings.
                        6. However, the approach taken by the Court today radically departs
                     from the one it adopted in 1996 when it had to determine its jurisdiction
                     ratione materiae under the same Treaty between the same Parties 5. In that
                     case, Iran alleged that the acts complained of breached the United States’
                     obligations under Article I, Article IV, paragraph 1, and Article X, para-
                     graph 1, of the Treaty of Amity and the Court, therefore, had jurisdiction
                     ratione materiae to entertain the case 6. The United States, for its part,
                     argued that Iran’s claims bore no relation to the Treaty of Amity 7.

                          2
                          POUS, pp. 94-95, para. 7.3.
                          3
                          Ibid., pp. 94‑117, in particular pp. 106‑117, paras. 7.26‑7.64; Observations and
                     Submissions on the US Preliminary Objections Submitted by the Islamic Republic of Iran,
                     pp. 17‑60, in particular, pp. 25‑60, paras. 3.15‑3.101.
                        4 CR 2020/10, pp. 34‑48, paras. 1‑47 ; CR 2020/11, pp. 27‑41, paras. 1‑46, and pp. 42‑54,

                     paras. 3‑46 ; CR 2020/12, pp. 25‑26, paras. 17‑21, and pp. 27‑34, paras. 3‑32; CR 2020/13,
                     pp. 24‑29, paras. 14‑26, and pp. 30‑36, paras. 4‑29.
                        5 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary

                     Objection, Judgment, I.C.J. Reports 1996 (II), p. 812, paras. 22 et seq.
                        6 Ibid.
                        7 Ibid., p. 809, para. 14, and p. 812, para. 22.

                     40

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                     46 	                  1955 treaty of amity (decl. tomka)

                       7. In its 1996 Judgment, the Court devoted no less than 27 paragraphs
                     to a detailed analysis of Article I, Article IV, paragraph 1, and Article X,
                     paragraph 1, of the Treaty, inquiring whether the acts complained of
                     were capable of falling within the scope of the provisions invoked by the
                     Applicant. It concluded that “the destruction [of the platforms] was capa-
                     ble of having . . . an adverse effect upon the freedom of commerce as
                     guaranteed by Article X, paragraph 1, of the Treaty of 1955” 8. Already at
                     the jurisdictional phase of the case, the Court arrived at the conclusion
                     that Article I and Article IV, paragraph 1, of the Treaty could not form a
                     basis for the Court’s jurisdiction 9.

                        8. The Court recently followed the same approach to the analysis of
                     various provisions of the Treaty of Amity, invoked by Iran in support of
                     its claims, in the 2019 Judgment on preliminary objections in the Certain
                     Iranian Assets case 10. When it turned to the consideration of the second
                     preliminary objection raised by the United States, the Court analysed
                     Article IV, paragraph 2, Article XI, paragraph 4, Article III, paragraph 2,
                     Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty of
                     Amity 11.
                        9. In the present case, by contrast, the Court avoids analysing the
                     articles relied on by Iran when it alleges that the United States’ measures,
                     which target third countries (and their nationals or companies) because
                     they maintain trade, commercial or financial relations with Iran (and its
                     nationals or companies), are in breach of the United States’ obligations
                     under the Treaty of Amity.

                        10. The legal question which the Court should have determined at the
                     present stage of the proceedings is whether the Treaty of Amity provides
                     Iran (and its nationals or companies) with a right not to have its trade,
                     commercial or financial relations with third States (and their nationals or
                     companies) interfered with by the United States’ measures, or, in other
                     words, whether the United States have obligations under the provisions
                     invoked by Iran not to interfere with these trade, commercial or financial
                     relations. In order to answer this question, the Court should have analysed
                     the text of the provisions of the Treaty, relied on by Iran, in light of the
                     Treaty’s object and purpose. Without going into the detail, one may just
                     recall the preamble of the Treaty, which sets out the object and purpose
                     of the Treaty. The preamble specifies, in particular, that the United
                     States and Iran concluded the Treaty with the desire to “encourag[e]
                     mutually beneficial trade and investments and closer economic inter-

                        8 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary

                     Objection, Judgment, I.C.J. Reports 1996 (II), p. 820, para. 51.
                        9 Ibid., p. 815, para. 31, and p. 816, para. 36.
                        10 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Prelim-

                     inary Objections, Judgment, I.C.J. Reports 2019 (I), p. 7.
                        11 Ibid., pp. 25‑35, paras. 48‑80.

                     41

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                     47 	               1955 treaty of amity (decl. tomka)

                     course generally between their peoples” 12. What was required from the
                     Court was to interpret the text of the various articles of the Treaty of
                     Amity invoked by Iran in order to determine whether Iran’s claims are
                     capable of falling within these provisions. The Court received detailed
                     submissions by both Parties on the interpretation of these provisions.

                        11. Instead of answering the above question, which captures the sub-
                     stance of the United States’ second preliminary objection, the Court
                     rejects it (Judgment, para. 83). But, at the same time, the Court leaves
                     open the possibility for the Parties to argue “legal and factual questions”
                     raised by the second preliminary objection (ibid., para. 82). It is almost as
                     though the Court considers that the objection does not possess an exclu-
                     sively preliminary character. However, that is not the Court’s conclusion.
                     It simply rejects the objection.
                        12. If, at the merits stage of the proceedings, the Court comes to the
                     conclusion that the provisions relied on by Iran do not provide it (and its
                     nationals or companies) with a right not to have its trade, commercial or
                     financial relations with third States (and their nationals or companies)
                     interfered with, the logical conclusion should be that Iran’s claims do not
                     fall within those provisions and therefore the Court lacks jurisdiction.
                     However, such a conclusion is foreclosed by today’s Judgment rejecting
                     the second preliminary objection. In such hypothesis, the Court would be
                     left with only one option — to conclude that there was no breach of
                     the provisions invoked since they do not provide for the right claimed
                     by Iran.

                        13. I cannot share the approach adopted by the Court in this case,
                     which is inconsistent with the approach it took in 1996 and 2019 in cases
                     concerning the same Treaty. As my learned colleagues have stated in the
                     past: “Consistency is the essence of judicial reasoning. This is especially
                     true . . . with regard to closely related cases.” 13
                        14. As the issues of applicability of particular provisions of the Treaty
                     to the claims advanced by Iran will be reargued, upon the Court’s invita-
                     tion, during the merits stage, I do not consider it appropriate for me to
                     disclose my position at this stage with respect to each of the provisions
                     relied on by Iran.

                     (Signed) Peter Tomka.

                          12
                           Emphasis added.
                          13
                           Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Prelimi-
                     nary Objections, Judgment, I.C.J. Reports 2004 (III), joint declaration of Vice‑
                     President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al‑Khasawneh, Buergenthal
                     and Elaraby, p. 1353, para. 3.

                     42

5 Ord_1215.indb 90                                                                                20/05/22 13:08


376

DECLARATION DE M. WEERAMANTRY, VICE-PRÉSIDENT
[Traduction]

Je fais cette déclaration en tenant compte du drame humain et des souf-
frances intenses que le présent conflit cause dans toute la Yougoslavie.

La Cour fait observer que sa décision ne préjuge en rien la question de
sa compétence pour connaître du fond de l’affaire en vertu de l’article IX
de la convention sur le génocide ni aucune question relative à la receva-
bilité de la requête ou au fond lui-même et qu’elle laisse intact le droit des
Parties de faire valoir leurs moyens sur ces questions.

La Cour est donc saisie de l’affaire et continue de l’être jusqu’au mo-
ment où l’affaire sera en état. L'affaire n’est pas de celles que le manque
évident de compétence permet d’écarter in limine, comme il en est pour
les requêtes déposées contre les Etats-Unis et contre l'Espagne. C’est
ce que la Cour admet expressément au paragraphe 2 du dispositif de
son ordonnance, quand elle décide de réserver la suite de la procédure.

Indépendamment de la question de l'indication de mesures conserva-
toires, je considére par conséquent que la Cour devrait lancer un appel
aux deux Parties et leur rappeler qu’elles sont tenues d’agir conformé-
ment aux obligations qui leur incombent en vertu de la Charte des
Nations Unies et des autres règles du droit international, y compris le
droit humanitaire, et de s'abstenir de toute action propre à aggraver ou
étendre le conflit.

C'est là à mon avis la voie à suivre jusqu’au moment où sera examiné
au fond un différend qui se traduit par l'emploi de la force, des pertes en
vies humaines et des souffrances considérables.

Ce qui me conforte dans l’idée que c’est là la voie à suivre, ce sont les
observations que la Cour formule pour dire que le drame humain et les
pertes en vies humaines provoquées par le conflit la préoccupent profon-
dément ainsi que l’allusion qu'elle fait aux responsabilités qui lui incom-
bent dans le maintien de la paix et de la sécurité en vertu de la Charte et
de son Statut.

Cet appel, à mon sens, s'inscrirait parfaitement dans le cadre des tâches
et des responsabilités incombant à la Cour en vertu de la Charte des
Nations Unies et de son Statut et relèverait également de sa compétence
propre, comme je l’ai exposé plus en détail dans l'opinion dissidente que
jai jointe à la décision dans l'affaire Yougoslavie c. Belgique.

Je pense aussi que cet appel serait plus utile qu’une simple allusion à
ces questions dans le texte de la décision.

{ Signé) Christopher G. WEERAMANTRY.

17


398

            DECLARATION OF JUDGE AD HOC GAJA

   In deciding on the admissibility of Italy’s counter-claim the Court is
applying for the first time Article 80 of the Rules of Court as amended
with effect from 1 February 2001. Unlike the previous provision, the new
text requires the Court to take a decision “after hearing the parties” also
on an objection raised by the claimant State with regard to the Court’s
jurisdiction on the counter-claim. In the context of the Rules of Court
(see, e.g., Article 58, paragraph 2 ; Article 67 ; paragraph 1 ; Article 79,
paragraph 9 and Article 84, paragraph 2) “hearing the parties” appears
to imply that an oral hearing should be held. This seems particularly
justified when an objection relates to jurisdiction, given the impact of a
decision on jurisdiction. In case of a denial of jurisdiction, the defen-
dant State would be effectively prevented from bringing to the Court the
inadmissible counter-claim as a separate claim.

  In the case in hand, an oral hearing would probably have helped the
Court to identify more precisely the date when the dispute arose and
the facts and situations to which the dispute related. It may have allowed the
Court to establish which claims had been the object of “repeated attempts
to reach an agreement” (thus a memorandum of the German Govern-
ment quoted in the Memorial of the Federal Republic of Germany (p. 10,
para. 10)) before the conclusion of the 1961 bilateral agreements.

                                                (Signed) Giorgio GAJA.

92


          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

  APPEL CONCERNANT LA COMPÉTENCE
         DU CONSEIL DE L’OACI
  EN VERTU DE L’ARTICLE II, SECTION 2,
DE L’ACCORD DE 1944 RELATIF AU TRANSIT
DES SERVICES AÉRIENS INTERNATIONAUX
              (BAHREÏN, ÉGYPTE
       ET ÉMIRATS ARABES UNIS c. QATAR)

         ORDONNANCE DU 27 MARS 2019

                 2019
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

APPEAL RELATING TO THE JURISDICTION
        OF THE ICAO COUNCIL
     UNDER ARTICLE II, SECTION 2,
     OF THE 1944 INTERNATIONAL
  AIR SERVICES TRANSIT AGREEMENT
               (BAHRAIN, EGYPT
      AND UNITED ARAB EMIRATES v. QATAR)

            ORDER OF 27 MARCH 2019

                            Mode oﬃciel de citation :
  Appel concernant la compétence du Conseil de l’OACI en vertu de l’article II,
section 2, de l’accord de 1944 relatif au transit des services aériens internationaux
                (Bahreïn, Egypte et Emirats arabes unis c. Qatar),
            ordonnance du 27 mars 2019, C.I.J. Recueil 2019, p. 348

                                 Oﬃcial citation :
   Appeal relating to the Jurisdiction of the ICAO Council under Article II,
     Section 2, of the 1944 International Air Services Transit Agreement
           (Bahrain, Egypt and United Arab Emirates v. Qatar),
            Order of 27 March 2019, I.C.J. Reports 2019, p. 348

                                                  No de vente:
ISSN 0074-4441
ISBN 978-92-1-157368-8
                                                  Sales number    1166

                                 27 MARS 2019

                                ORDONNANCE

  APPEL CONCERNANT LA COMPÉTENCE
         DU CONSEIL DE L’OACI
  EN VERTU DE L’ARTICLE II, SECTION 2,
DE L’ACCORD DE 1944 RELATIF AU TRANSIT
DES SERVICES AÉRIENS INTERNATIONAUX
          (BAHREÏN, ÉGYPTE
   ET ÉMIRATS ARABES UNIS c. QATAR)

APPEAL RELATING TO THE JURISDICTION
        OF THE ICAO COUNCIL
     UNDER ARTICLE II, SECTION 2,
     OF THE 1944 INTERNATIONAL
  AIR SERVICES TRANSIT AGREEMENT
          (BAHRAIN, EGYPT
 AND UNITED ARAB EMIRATES v. QATAR)

                                27 MARCH 2019

                                      ORDER

               348

                              COUR INTERNATIONALE DE JUSTICE
                                              ANNÉE 2019
   2019
 27 mars                                      27 mars 2019
Rôle général
  no 174
                 APPEL CONCERNANT LA COMPÉTENCE
                        DU CONSEIL DE L’OACI
                 EN VERTU DE L’ARTICLE II, SECTION 2,
               DE L’ACCORD DE 1944 RELATIF AU TRANSIT
               DES SERVICES AÉRIENS INTERNATIONAUX
                                     (BAHREÏN, ÉGYPTE
                              ET ÉMIRATS ARABES UNIS c. QATAR)

                                            ORDONNANCE

               Présents : M. Yusuf, président ; Mme Xue, vice-présidente ; MM. Tomka,
                          Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
                          M. Gaja, Mme Sebutinde, MM. Bhandari, Crawford,
                          Gevorgian, Salam, Iwasawa, juges ; M. Fomété, greffier
                          adjoint.

                   La Cour internationale de Justice,
                  Ainsi composée,
                  Après délibéré en chambre du conseil,
                  Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, para-
               graphe 2, 48 et 49 de son Règlement,
                  Vu la requête déposée au Greﬀe de la Cour le 4 juillet 2018 par le
               Royaume de Bahreïn, la République arabe d’Egypte et les Emirats
               arabes unis (ci-après dénommés collectivement les « demandeurs »)
               tendant à faire appel de la décision rendue le 29 juin 2018 par le
               Conseil de l’Organisation de l’aviation civile internationale dans une
               instance introduite le 30 octobre 2017 contre ces Etats par l’Etat du Qatar
               (ci-après le « Qatar » ou le « défendeur ») en vertu de l’article II,

               4

349             conseil de l’oaci (ordonnance 27 III 19)

section 2, de l’accord de 1944 relatif au transit des services aériens inter-
nationaux,
   Vu l’ordonnance en date du 25 juillet 2018, par laquelle le président de
la Cour a ﬁxé respectivement au 27 décembre 2018 et au 27 mai 2019 les
dates d’expiration des délais pour le dépôt d’un mémoire par les deman-
deurs et d’un contre-mémoire par le défendeur,
   Vu le mémoire déposé par les demandeurs le 27 décembre 2018 et le
contre-mémoire déposé par le défendeur le 25 février 2019 ;

   Considérant que le président de la Cour a tenu une réunion avec les
agents des Parties le 15 mars 2019 aﬁn de se renseigner sur leurs vues
concernant certaines questions de procédure ; que, en préalable à cette
réunion, dans une lettre datée du 11 mars 2019, les demandeurs avaient
prié la Cour d’autoriser ou de prescrire un second tour de pièces écrites
au vu de « la nature, [de] la complexité et [de] l’importance des questions
juridiques et factuelles à examiner en l’espèce » ; et que, dans une lettre
datée du 12 mars 2019, l’agent du défendeur avait fait savoir que le Qatar
présenterait ses vues concernant les questions de procédure lors de la
réunion à venir ;
   Considérant que, lors de ladite réunion, les demandeurs ont réitéré leur
point de vue selon lequel un second tour de pièces écrites se justiﬁait par
les circonstances de l’aﬀaire ; qu’ils ont notamment indiqué que, dans son
contre-mémoire, le défendeur avait introduit un nombre considérable de
nouveaux éléments factuels soulevant plusieurs questions relatives à la
preuve, ainsi que de nouveaux arguments juridiques auxquels, pour garan-
tir une procédure régulière, les demandeurs devraient se voir accorder la
possibilité de répondre par écrit ; et que, s’agissant de la question du délai,
ils ont demandé au moins quatre mois pour préparer leur réplique ;
   Considérant que, lors de la même réunion, le défendeur a fait savoir
qu’un second tour n’était selon lui pas nécessaire ; qu’il a considéré que la
portée de l’aﬀaire était limitée par sa nature même, à savoir l’appel d’une
décision du Conseil de l’Organisation de l’aviation civile internationale ;
qu’il a soutenu que la Cour disposait déjà de suﬃsamment d’informations
sur les questions factuelles et juridiques soulevées en l’aﬀaire ; et qu’il a
indiqué que, si la Cour décidait de prescrire un second tour de pièces
écrites, les demandeurs et le défendeur devraient chacun se voir accorder
un délai d’un mois pour la préparation d’une réplique et d’une duplique,
respectivement ;
   Compte tenu des vues des Parties,
   Prescrit le dépôt d’une réplique par le Royaume de Bahreïn, la Répu-
blique arabe d’Egypte et les Emirats arabes unis, et d’une duplique par
l’Etat du Qatar ;
  Fixe comme suit les dates d’expiration des délais pour le dépôt de ces
pièces de la procédure écrite :

5

350             conseil de l’oaci (ordonnance 27 III 19)

  Pour la réplique du Royaume de Bahreïn, de la République arabe
d’Egypte et des Emirats arabes unis, le 27 mai 2019 ;
  Pour la duplique de l’Etat du Qatar, le 29 juillet 2019 ;
    Réserve la suite de la procédure.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le vingt-sept mars deux mille dix-neuf, en cinq exem-
plaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement aux Gouvernements du Royaume de
Bahreïn, de la République arabe d’Egypte et des Emirats arabes unis, et
au Gouvernement de l’Etat du Qatar.

                                                     Le président,
                                        (Signé) Abdulqawi Ahmed Yusuf.
                                                   Le greﬃer adjoint,
                                           (Signé) Jean-Pelé Fomété.

6