25

DISSENTING OPINION BY M. NYHOLM.
{ Translation. | |

The present case is now before the Court only for a decision
on the question of jurisdiction. The merits, therefore, namely,
the claim for damages to be paid to M. Mavrommatis by the
Mandatory for Palestine, in consequence of having prevented
the readaptation of M. Mavrommatis’. Turkish concession,
which readaptation had been decreed by the Court (Judgment
No. 5 of March 26th, 1925), have not now to be considered.
‘Giving the case the degree of simplicity which it should
have at the present stage, it is only necessary to consider
the Mandatory’s plea to the effect that the Court has no
jurisdiction to entertain the suit.

Before approaching this question, it should be observed that
in a suit brought in 1924 by the Greek Government (a suit
of a nature entirely similar to the present one), the Court
declared itself to have jurisdiction in Judgment No. 2 of
August 30th, 1924, and in so doing expressly based its jurisdic-
tion on Article rz of the Mandate for Palestine of July 24th,
1922.

*
* *

In order to determine the scope of the jurisdiction obtained
by the Court from the Mandate “for Palestine, which is the
sole source of the Court’s jurisdiction to consider the Mandate,
regard must be had (z) to the character of the Mandate and
especially to the reasons which led the League of Nations
to insert in the Mandate a clause giving jurisdiction to the
Permanent Court of International Justice, and (2) to. the struc-
ture of the Mandate in order to ascertain in what manner,
by which articles of the Mandate and within what limits,
this jurisdiction has been established. Ad (x): As regards
the first point, the historical development of the Mandate
system shows that the mandatory Powers were to carry out
this task under the control of the League of Nations to
which they were bound to submit annual reports.
DISSENTING OPINION BY M. NYHOLM 26

. The institution of this control was due to the fact that the
Powers did not wish to leave a mandatory at liberty. to
govern mandated territories entirely at his discretion. Certain
limits were to be fixed, not only with a view to harmonizing
the principles established under the various mandates, but also
with a view to establishing special rules in regard to each
country, that is to say, a guarantee that the administrations
should act in accordance with the principles adopted in the
interests of the community of nations by the Covenant.

The guarantee which offered itself consisted in conferring on
the Court—a new international institution—jurisdiction to
decide any questions regarding the interpretation and applica-
tion of the Mandate.

Mandatories were not to infringe the rights either of States
or of individuals. Each State therefore has a right of control
which it may exercise by applying to the Court. It is true
that there is no provision giving the Court jurisdiction as
regards the relations between individuals and the mandatory,
but it is to be presumed that, if a subject of a certain State
suffered injury, his government would, if necessary, take action
on his behalf. When a suit is conducted between a mandatory
and another Member of the League of Nations, regarding a
question of interpretation or application—which is precisely
the case in the present suit—, Article 26 of the Mandate gives
the Court jurisdiction. This article is also recognized by the
judgment given to-day to be the general basis of the Court’s
jurisdiction. But whereas the judgment seeks to limit this
jurisdiction on the basis of Article 11 of the Mandate, it may
be shown that this article contains no rule in regard to juris-
diction.

Turning next to point (2): This follows from an examination
of the structure of the Mandate. The latter contains, apart
from various paragraphs of no importance from the point of
view of the present case, Article 26 which lays down the
. general rule in regard to jurisdiction, and Article 1 which
relates to the administration of the Mandatory. Article 1 says:

“The Mandatory shall have full powers of legislation
and of administration, save as they may be limited by
the terms of this Mandate.”
DISSENTING OPINION BY M. NYHOLM 27

These limits were necessary with a view to ‘the control of
legislation and administration: They are laid down in the
following articles—2 to 23-—which give special instructions
regarding the exercise of his. power by the Mandatory. Thus
Article 2 relates to the creation of a national home, and the
following articles relate to various matters such as emigration,
nationality regulations, the establishment of a judicial system,
etc. Article 11, with which the present case is specially
concerned, refers to the necessary measures to be taken by the
Mandatory, ‘‘for the development of the country’.

In order to enable the case to be properly understood, it will
be well at this point to reproduce the text of Article 1x in full:

Article 1x.

“The Administration of Palestine shall take all necessary
measures to safeguard the interests of the community in
connection with the development of the country, and, subject
to any international obligations accepted by the Mandatory,
shall have full power to provide for public ownership or
control of any of the natural resources of the country or
of the public works, services and utilities established or to
be established therein. It shall introduce a land system
appropriate to the needs of the country, having regard
among other things to the desirability of promoting the
close settlement and intensive cultivation of the land.

“The Administration may arrange with the Jewish
Agency mentioned in Article 4 to construct or operate,
upon fair and equitable terms, any public works, services
and utilities, and to develop any of the natural resources
of the country, in so far as these matters are not directly
undertaken by the Administration. Any such arrangement
shall provide that no profits distributed by such Agency,
directly or indirectly, shall exceed a reasonable rate of
interest on the capital, and any further profits shall be
utilized by it for the benefit of the country in a manner
approved by the Administration.”

Upon examining the text of this article, it will be seen that
it forms part of the series of indications laid down for the

4
DISSENTING OPINION BY M. NYHOLM 28

Mandatory in Articles 2 to 23. It deals with the particular
subject : “the development of the country”. This development
is supposed to be based upon the exploitation of the natural
resources of the country, that is to say, of public works,
services and utilities, such as tramways, railways, electricity
and water works, ports, etc. The article also mentions as
a special point the introduction of a land system appropriate
to the needs of the country. Again, it adds that in carrying
out this programme, the Mandatory will have full power to
make arrangements, in order that, as far as possible, these
public works shall be exploited by the State, or, at all events,
subjected to government control. If the word ‘“‘full’ is not
a mere pleonasm, it is perhaps intended to emphasize that the
intention is that the Mandatory should make every effort to:
obtain ownership of or control over public enterprises, in
accordance with modern ideas. That that is the intention and
aim expressed in the first paragraph, appears indirectly from
the second paragraph. The article therefore simply lays down
the following general indication for the Mandatory: in the first
place, it is desirable that the exploitation of public works
should be in the hands of the State and that in any case
government control should be procured by inserting appropriate
articles in the concessions which form the bases of the develop-
ment of the resources of the country. Understood in this way,
the interpretation of the article becomes simple; but this
simple construction is not adopted in the judgment, which
regards the article as containing rules concerning jurisdiction.
This view has perhaps been taken to some slight extent on
the basis of the French text which uses the word décider ;
‘this, however, is an inadequate translation, hardly in accord- .
ance with the intention of the clause of the English phrase
“provide for”, which here would be better translated by avoir
soin d'établir. Article 11 indeed contains no provision regarding
jurisdiction. The Court confines itself to saying (Judgment
No. 2, page 18) that it “feels that the present judgment
should be based principally on the first part of paragraph 1
of Article 11”. It is not easy to see on what basis the judg-
ment succeeds—without other commentaries—in establishing
that the jurisdiction of the Court is determined in Article 11
and precisely by, the phrase to the effect that the Mandatory
DISSENTING OPINION BY M. NYHOLM 29

acts in the exercice of his full power. to provide for public owner-
ship or control. These words are certainly not intended here to
serve as a basis for a jurisdictional rule. They constitute in
themselves a vague criterion. The judgment admits that “the
exercise of full power to provide for public control” is essen-
tially a question to be decided in each case as it arises, and
the interpretations of a somewhat restrictive character which
have to be placed upon them in order to apply them are often
of a subtle character which is in contrast to the clearness
which should govern the important question of jurisdiction.

The judgment thus finally says that the grant of a conces-
sion providing for public control does not in itself constitute
an exercise of the ‘full power’ in question, but that the spe-
cial circumstances of each case must be considered; that juris-
diction is restricted to the actual grant of the concession,
but that it does not in principle extend to cover the subse-
quent exercise of the control provided for in the concession ;
this appears to constitute an obstacle to a reasonable applica-
tion of the rules of jurisdiction. The judgment then, basing
the jurisdiction of the Court on the phrase in Article rz, which
is not calculated to form a basis for jurisdiction, arrives
successively at a number of hardly admissible conclusions.

Thus it says that the Mavrommatis concessions of 1914
do not fall within the scope of the article and that the Court
can only deal with them in so far as they are affected by
the Rutenberg concessions.

Although the Mavrommatis concessions may not have
been granted by the Mandatory but previously. by Turkey,
the Mandatory is. concerned with them, since he must .bring
them definitely into .existence by readapting them, and that,
in order to fulfil the international obligations set out in Pro-
tocol XII.

As regards this Protocol, the judgment concludes that,
subject to a few particular cases, it cannot come into account
except in pursuance of an agreement between the Parties,
because the Protocol does not contain any special rule relating
to jurisdiction. In Judgment No. 2, however, it was stated,
with regard to a discussion relating to the origin of the
Protocol (page 31), that the Protocol is the complement of the
provisions of the Mandate in the same way as a set of
regulations alluded to in a law indirectly form part of it.
DISSENTING OPINION BY M. NYHOLM 30

“Moreover, the agreement does not possess’ a formal character
but appears to be deduced from a few phrases. which appear
in the pleadings. Furthermore, Judgment No. 2 only contains
a vague allusion to the necessity of an agreement, and it
is only Judgment No. 5 which contains a statement relating
to it; but this judgment cannot restrict the jurisdiction
established by a previous judgment. .

The development of the theory which bases jurisdiction
upon Article rz thus, as a consequence, provides an entirely
vague criterion, dependent in each case upon a restrietive
interpretation as regards jurisdiction, whereas precise terms were
necessary in order to establish an exception to the general
tule of Article 26.

This rule establishes as a guarantee for the Powers a system
of control which ensures that the Mandatory will act in
conformity with the provisions of the Mandate. |

The intention underlying the Mandate was certainly not
that the clear general rule as to jurisdiction inscribed in
Article 26 concerning any question of ‘‘interpretation and applica-
tion” of the Mandate should be capable of being overruled by
specific interpretations of the different articles.

The same ground which enables the judgment to find in
Article Ir a restriction upon the jurisdiction would enable
also to find such a restriction in the other articles of the
Mandate, and the result would be that the Mandatory would
become more or less free from control by the Powers.

Other consequences which it is difficult to admit may
also be deduced: from the theory upon which the judgment is
founded. According to this theory, the jurisdiction of the
Court is confined to the cases in which one can discern an
action on the part of the Mandatory which consists of the
exercise of a certain power of control. As regards any other
action on the Mandatory’s part, the Court would have no
jurisdiction.

In the case under consideration the actions by the Mandat-
ory which are in question have not regard to the grant of
a concession, but are actions which would result in the annul-
ment of the rights of M. Mavrommatis to ‘obtain a definite
“concession. As regards these actions, the Court would thus have
no jurisdiction. It is obvious that the Mandatory may choose
DISSENTING OPINION BY M. NYHOLM 31

the methods. of taking action that he wishes, but it follows
that by the choice of his own line of action a mandatory may
abolish the jurisdiction of the Court, an inadmissible pro-
position. Moreover, generally speaking, it may be said that if
the jurisdiction of the Court, set up as a guarantee for the
nations, is found, as regards concessions, to be limited to the
sole grant of such a concession, and this having regard to
the special conditions particular to each case, and according
to the surrounding circumstances of such grant, this is a
conclusion which appears to be inacceptable. Indeed, the
jurisdiction of the Court as regards the Mandate should be
general, subject to specific exceptions. The reason underlying
the judgment admits the jurisdiction of the Court as an
exception, which signifies in reality a cancellation of Article 26.
+ * *

The demonstration which precedes will not be followed up
by a detailed examination of the judgment. It is only necessary
to point out that even the reasoning of the judgment leads
to the acceptance of jurisdiction by the Court. In reality
the present case is merely the continuation of the former
one. If it is to be considered as a new independent case, it
is, on this assumption, identical with the first. In both
cases the jurisdiction of the Court should be affirmed.

That the case is a continuation of the former one, may
be deduced from the fact that the Court (Judgment No. 5)
had placed the Parties before the obligation of readaptation.
The readaptation was interrupted. M. Mavrommatis claims
that this was through the fault of the Mandatory and draws
the conclusion that the case should be taken up again in
order to be terminated by the allocation of damages. It is
clear that this is a question merely of continuation.

On this important question of jurisdiction the judgment does
admit (page 14) that “the present suit at first sight would
seem to be a continuation of the case decided by Judgments
Nos. 2 and 5’, adding, however, that ‘it does not follow
from this circumstance that the jurisdiction accepted by the
Court in Judgment No. 2 also exists as regards the present
case. For this: case concerns facts which have occurred since
DISSENTING OPINION BY M. NYHOLM 32

these judgments were given and the solution of the question
now before the Court depends upon the nature of these facts
in relation to the clauses governing the Court’s jurisdiction
in the present suit”. |

In the second place, even if the case is a new and inde-
pendent one, it is identical with the former case. It is only
necessary to recall the two concessions granted to Mr. Ruten-
‘berg on September 21st, 1921, and March 5th, 1926, respect-
ively: The Court ruled that it had jurisdiction as regards
the reaction of the first concession on M. Mavrommatis’ posi-
tion. It is submitted that the case is identical as regards the
second concession. Here, as in the first case, the submissions
refer to the fact that the Rutenberg concessions have influ-
enced the financial circles, in which the smallest uncertainty
is fatal as regards many transactions, and that they had effect-
ively prevented the financing of M. Mavrommatis’ under-
taking.. The Court has jurisdiction, as in. the first case, to
determine this question. |