INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
CONTINENTAL SHELF

(LIBYAN ARAB JAMAHIRIYA/MALTA)

ORDER OF 26 APRIL 1983

1983

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
(JAMAHIRIYA ARABE LIBYENNE/MALTE)

ORDONNANCE DU 26 AVRIL 1983
Official citation :

Continental Shelf (Libyan Arab Jamahiriya/ Malta),
Order of 26 April 1983, I.C.J. Reports 1983, p. 3.

Mode officiel de citation :

Plateau continental (Jamahiriya arabe libyenne/ Malte),
ordonnance du 26 avril 1983, C.IJ. Recueil 1983, p. 3.

Na ne: 495

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1983

26 avril 1983

AFFAIRE DU PLATEAU CONTINENTAL

(JAMAHIRIYA ARABE LIBYENNE/MALTE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et les articles 44 et 46 du Règlement
de la Cour,

Vu le compromis conclu le 23 mai 1976 entre la Jamahiriya arabe
libyenne populaire et socialiste et la République de Malte, concernant le
plateau continental, notifié à la Cour le 26 juillet 1982,

Vu l'ordonnance du 27 juillet 1982 fixant au 26 avril 1983 la date d’ex-
piration du délai pour le dépôt du mémoire de chaque Partie ;

Considérant que le mémoire de la Jamahiriya arabe libyenne et le
mémoire de la République de Malte ont été déposés dans le délai sus-
Visé ;

Considérant que l’article IT, paragraphe 2, du compromis du 23 mai 1976
prévoit, entre autres, que les pièces de procédure suivantes seront soumises
à la Cour et échangées entre les Parties dans un délai de quatre mois après
le dépôt des mémoires ;

Considérant que lors d’une entrevue avec le Président, le 26 avril 1983,
l'agent de chaque Partie l’a informé que, malgré ce qui était prévu dans le
compromis, les Parties souhaitaient que le délai pour le dépôt des contre-
mémoires fût de six mois à partir du dépôt des mémoires ;

Fixe au 26 octobre 1983 la date d'expiration du délai pour le dépôt des
contre-mémoires de la Jamahiriya arabe libyenne populaire et socialiste et
de la République de Malte :

Réserve la suite de la procédure.

1983
26 avril
Rôle généra
n° 68
PLATEAU CONTINENTAL (ORDONNANCE 26 IV 83) 4

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le vingt-six avril mil neuf cent quatre-vingt-trois, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement de la Jamahiriya
arabe libyenne populaire et socialiste et au Gouvernement de la Répu-
blique de Malte.

Le Président,
(Signé) T. O. ELtas.

Le Greffier,
(Signé) Santiago TORRES BERNARDEZ.


COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 62

AFFAIRE FRANCO-HELLENIQUE
DES PHARES

ARRÊT DU 17 MARS 1934
XXXIme SESSION

1934

XXXIst SESSION
JUDGMENT OF MARCH 17th, 1934

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 62

LIGHTHOUSES CASE
BETWEEN FRANCE AND GREECE

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
PERMANENT COURT OF INTERNATIONAL JUSTICE

1934.
THIRTY-FIRST (ORDINARY) SESSION. | General ine:

No. 59.
March 17th, 1934.

LIGHTHOUSES CASE
BETWEEN FRANCE AND GREECE

[Translation.]

Concessionary contract entered inio im 1913 between the Ottoman
Government and a French firm, covering inter alia territories
subsequently ceded to Greece.

Interpretation of the Special Agreement, having regard to
Protocol XII of Lausanne (July 24th, 1923) and to the dis-
cussions preceding the conclusion of the former.

Scope of the contract, having vegard to the intention of the
Parties.

Validity of the concessionary contract, according to Ottoman
law; Art. 36 of the Turkish Constitution of 1876 (amended in
1909); the Turkish law of Igro concerning concessions.

Enforceability of the contract against Greece, having vegard to
the military occupation of certain territories at the time when the
contract was entered into, and to Protocol XII of Lausanne.

JUDGMENT,

Before: Sir CEciL Hurst, President; M. GUERRERO, Vice-.
President; Baron RoLin-JAEQUEMYNS, Count Rost-
WOROWSKI, MM. FROMAGEOT, ANZILOTTI, ADATCI,
ScHUCKING, NEGULESCO, Jhr. vAN EvsiNGA, M. Wana,
judges; M. SÉFÉRIADES, Judge ad hoc.

4
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 5

In the case concerning the contract concluded on April ist/
14th, 1913, between the ‘Administration générale des Phares
de l'Empire ottoman” and the Ottoman Government,

Between

the Government of the French Republic, represented by
M. J. Basdevant, Legal Adviser to the Ministry for Foreign
Affairs, .

and

the Government of the Greek Republic, represented first by
M. T. Triantafyllakos, Greek Chargé d’affaires at The Hague,
and subsequently by M. G. C. Lagoudakis, Envoy Extraordinary
and Minister Plenipotentiary of Greece at The Hague,

The Court,
composed as above,

delivers the following judgment : |

By a Special Agreement for arbitration, signed at Paris on
July r5th, 1031, the French and Greek Governments have agreed
to submit to the Court the dispute which has arisen between them
as a result of the Greek Government’s refusal to comply with
the request of the French Government and to give satisfaction to
the French firm Collas & Michel, known as the “Administration
générale des Phares de l’Empire ottoman’, in a dispute which had
arisen between that firm and the Greek Government concerning
the validity as against Greece of the contract concluded between
the firm and the Ottoman Empire on April rst/14th, 1913, for the
renewal of an existing concession.

Under Article 2 of the Special Agreement, that instrument was
to be notified to the Registry by either Party, as soon as ratifi-
cations had been exchanged. The Protocol of exchange of ratifica-
tions was not produced to the Court, but the Special Agreement
was notified to it by the French Minister and by the Greek Chargé
d'affaires at The Hague, who filed the text of the instrument with
the Registry on May a3rd, 1933. The Court considers that this
official notification by the two Parties concerned constitutes adequate
proof of the entry into force of the Special Agreement.

Under Article 1 of the Special Agreement, the Court is called
upon

“to give its decision upon the question whether the contract
concluded on April tst/r4th, 1913, between the French firm
Collas & Michel, known as the ‘Administration générale des
Phares de l'Empire ottoman’, and the Ottoman Government,
extending from September 4th, 1924, to September 4th, 1949,
concession contracts granted to the said firm, was duly
entered into and is accordingly operative as regards the Greek

5
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 6

Government in so far as concerns lighthouses situated in the
territories assigned to it after the Balkan wars or subsequently 1”.

The subject of the dispute has thus been indicated in accordance
with Article 40 of the Statute.

The communications provided for in Article 40 of the Statute
and Article 36 of the Rules were duly despatched; the Special
Agreement was communicated to Members of the Court on May 23rd,
and to States entitled to appear before the Court on July 29th and
August 8th, 1933.

As the Court included on the Bench no judge of Greek nation-
_ ality, the Greek Government availed itself of its right, under
Article 31 of the Statute, to appoint one.

In Article 3 of the Special Agreement, the Parties proposed that
-the Court should -

“fix a period of three months as from the date fixed in the
Order made by the Court for the purpose (the time-limit
granted to the Government of the French Republic and to the
Government of the Greek Republic) for the presentation of
their respective Cases setting out their views on the question
and formulating their submissions, and a period of three months
as from the date of filing of these Cases for the presentation
of their Counter-Cases in reply, in which, if necessary, they
shall formulate any additional submissions’’.

The Agent for the Greek Government having been appointed on
June 7th, 1933, and the Agent for the French Government on
July 27th, the Court, on July 28th, 1933, made an Order in which
the date last mentioned was fixed as that from which time-limits
should be reckoned. The time-limits fixed by the Order were in
accordance with the proposal of the Parties. In the same Order,
the Court stated that a clause in a Special Agreement, drawn in
terms such as those of the above-quoted Article 3, implied an
agreement between the Parties to waive the right to present a
Reply. The time-limit for the filing of Counter-Cases expired on
January 26th, 1934, and the documents of the written proceedings
having been duly filed within the periods fixed, the case became
ready for hearing on that date.

The French Government in its Case prays the Court

“to adjudge and declare that the contract concluded on
April rst/r4th, 1913, between the French firm Collas & Michel,
known as the ‘Administration générale des Phares de l'Empire

1 In the text of the Special Agreement communicated to all States by the
Registry in July and August 1933, the words ‘dément intervenu’’ were trans-
lated ‘‘regularly concluded”. In the present judgment, the translation adopted
in the Lausanne Protocol XII ‘duly entered into’’ is used throughout, including
quotations of Article 1 of the Special Agreement.

6
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 7

ottoman’, and the Ottoman Government, prolonging from Sep-
tember 4th, 1924, to September 4th, 1949, concession contracts
granted to the said firm, was duly entered into and is accord-
ingly operative as regards the Greek Government in so far
as concerns lighthouses situated in the territories assigned to
it after the Balkan wars or subsequently”.

The Greek Government, on the other hand, prays the Court in
its Case

“to adjudge and declare that the contract concluded on
April 1st/r4th, 1913, between the French firm Collas & Michel,
known as the ‘Administration générale des Phares de l’Empire
ottoman’, and the Ottoman Government, prolonging from Sep-
tember 4th, 1924, to September 4th, 1949, concession contracts
granted to the said firm was not duly entered into and is not
accordingly operative as regards the Greek Government, in so
far as concerns lighthouses situated in the territories assigned to
it after the Balkan wars or subsequently”’.

These submissions were not amended in the respective Counter-
Cases.

In the course of public sittings held from February 5th to 8th,
1934, the Court heard the oral statements, reply and rejoinder
presented :

On behalf of France, by M. Basdevant, Agent for the Govern-
ment of the French Republic, and

On behalf of Greece, by M. Politis, Envoy Extraordinary and
Minister Plenipotentiary of the Greek Republic in Paris, entrusted
by his Government with the oral presentation of its case before the
Court.

At the oral proceedings, the submissions presented in the respec-
tive Cases were maintained in their entirety by the Parties.

Numerous documents in support of their contentions were filed
on behalf of both Parties, either as annexes to the documents of
the written proceedings or in the course of the oral proceedings 1.

These are the circumstances in which the Court is now called
upon to give judgment in the case submitted to it by the Special
Agreement between France and Greece of July 15th, 19317.

The question submitted to the Court is whether a contract
concluded on April zst/r4th, 1913, between the Ottoman
Government and a French firm, Collas & Michel, renewing
the concession for the maintenance of the lighthouses on the
coasts of the Ottoman Empire, was duly entered into. and is

1 See list in the Annex.
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 8

accordingly operative as regards the Greek Government in so
far as concerns lighthouses situated in the territories assigned
to Greece after the Balkan wars or subsequently.

The concession in question, which covers the management,
development, and maintenance of the “system of lights on
the coasts of the Ottoman Empire in the Mediterranean, the
Dardanelles and the Black Sea”, was first granted to this
firm in 1860 for a period of twenty years as from 1864. In
1879, however, i.e. five years before its expiry, it was renewed
for a period of fifteen years expiring in 1899. It was renewed
a second time in 1894, for a period of twenty-five years, expir-
ing on September 4th, 1924. Finally, in 1913, it was again
renewed for twenty-five years, ie. until September 4th, 1940. .
It is the contract granting this last prolongation which forms
the subject of the Special Agreement.

From the outset, the concession was based on the following
principle: the concessionnaires, who were authorized to collect .
lighthouse dues—from which however war-vessels were exempted
—were to be remunerated by the receipts from this source;
the Ottoman authorities were also to place at the disposal
of the concessionnaires, without charge, certain premises includ-
. ing some to be used as collecting offices. A proportion of
these receipts (in the later contracts 50%) was reserved to
the Ottoman Government. It appeared that this proportion
might usefully be employed as security for loans, the Govern-
ment ceding its share of the receipts to the lender until the
sum lent, together with interest, had been repaid in full. On
three occasions, the Ottoman Government had recourse to this
expedient ; the last occasion was when the most recent renewal.
contract was concluded in 1913. This prolongation of the
concession was preceded by negotiations, apparently extending
over a period of about two years and relating also to a new
joan secured upon the receipts from the lighthouse dues.

The circumstances in which the latter renewal contract
was concluded were as follows:

On April 1st/r4th, 1913, there was issued a Decree Law—
sometimes described. as a provisional law—whereby the Sultan
authorized the Ottoman Minister of Finance to conclude the
convention for the renewal of the concession, and to sign
instruments relating to a loan or advance of £500,000 (T.),
repayable out of the Imperial Government’s share of the light-
house receipts; the texts of the convention and the other
instruments were annexed to the Decree. The “convention”
was signed on the same day. The instruments relating to

8
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 9

the loan, including the ‘contract for an advance”, and the
letters authorizing the payment to the lenders of the Govern-
ment’s share of the lighthouse receipts, were signed on the
next day, April 2nd/z5th, 1913.

The Decree Law of April 1st/r4th, 1913, was published in
the Official Turkish Gazette of May 14th/27th of the same
year. The Turkish Parliament ratified the Decree Law on
December 18th/31st, 1914. The law was promulgated by a
Decree dated December 22nd, 1914/January 4th, 1915, published
on December 26th, 1914/January 8th, 1915.

At the time when the contract of April Ist/14th, 1913,
renewing the concession was made, military operations in
the first Balkan war had been resumed, after the temporary
failure (Jan., 1913) of the peace negotiations initiated in
London in December, 1912; these operations were terminated,
in the last days of April, 1913, by the capitulation of Scutari ;
and the Treaty of London was concluded on the following
30th of May. It should however be observed in this connec-
tion that, after the capitulation of Adrianople (March 28th),
the Great Powers submitted to the belligerents (March 31st)
preliminary peace conditions, which were accepted on the
following day (April ist) by Turkey, but were not agreed
to by the Balkan Alles until April 2oth. From the very
outset of the war, the greater part of Turkey in Europe had
been occupied by the Balkan Allies and, so far as concerns
the Mediterranean coasts and the islands, by Greece. Accord-
ing to the proposal of the mediating Powers, Turkey was to
cede the continental territories thus occupied to the Balkan
Allies; she was to abandon her interest in Crete; and
the question of the Aegean islands was to be left to the
aforesaid Powers for decision.

The Treaty of London followed the main lines of this pro-
posal: Turkey ceded to the Balkan Allies her possessions on
the mainland of Europe, west of the Enos-Midia line—with
the exception of Albania—and also Crete; and she left to the
Powets inter ala the decision as to the disposal of the
Ottoman islands in the Aegean, with the exception of Crete.
In February, 1914, the Powers assigned these islands, with
the exception of three (Imbros, Tenedos and Castellorizo),
to Greece.

The Treaty of London, which was not ratified, made no
provision in regard to the treatment of concessions granted
by the Ottoman authorities in the ceded territories. The
examination of this question, among others, was entrusted to
a “Financial Commission on Balkan Affairs”, which held a first
session in Paris in June-July, 1913, when it drew up certain
‘proposals in regard to this subject. However, these proposals
were never submitted for the approval:of the Powers concerned.

9
A./B. 62.—LIGHTHOUSES CASE (FRANCE-—GREECE) 10

-The second Balkan war was terminated, as regards Greece
and Turkey, by the Treaty of Athens of November 1st/r4th,
1913, which came into force on November 16th/29th of that
year. This Treaty maintained the territorial clauses of the
Treaty of London. Under Article 5 of the Treaty of Athens,
rights acquired “up to the time of the occupation of the
ceded territories’ were to be respected, subject, however,
to the decisions of the Financial Commission on Balkan
Affairs ; but that Commission, which was to have held a second
session in September or October, 1014, did not meet again.

After the War of 1914-1918, the relations between Greece
and Turkey were to have been settled by the Treaty of Sévres,
of August roth, 1920, the signatories of which also included ~
France. Article 311 and the following articles of that Treaty,
-which was not ratified, once more laid down rules for the
treatment of concessions granted by the Ottoman authorities,
including those granted in the territories detached from Turkey
in 1913 after the Balkan wars, but did not take the commence-
ment of the occupation of these territories as the material date.

As a result of the events which subsequently took place in
Turkey, and of the situation which developed between Turkey
and Greece, the relations between those two countries were
only finally settled by the instruments which were signed at
Lausanne in July, 1923, France being amongst the signatories.
The question of concessions was dealt with in Protocol XII,
attached to the Treaty of July 24th, 1923. That Protocol
draws a distinction, in Article 9, between the territories
detached from Turkey under the said Treaty and the terri-
tories which had been detached from that country after the
Balkan wars. In regard to the former, the Protocol fixes
October 29th, 1914, as the decisive date for the recognition of
concessionary contracts; in regard to the latter, it adopts the
date of the entry into force of the treaty under which the
territory was transferred, in each case.

In 1913, the Lighthouse Administration, envisaging with
some concern—according to the French Case—the possibility of
territorial changes, got into touch with the Greek Government.
The latter Government has alleged that the Administration
itself then informed the Greek representatives that the contract
of 1913 was without importance to Greece, since it could not
form the basis of any claim against that country, and that,
for this reason, the renewal contract of 1913 was not commu-
nicated to the said representatives. It is, however, common
ground that, in replying to a questionnaire of the Financial
Commission on Balkan Affairs, the Lighthouse Administration
indicated, at the same period, among its “‘firmans of conces-
sions, contracts and conventions”, etc., the ‘renewal contract
of April 1st/r4th, 1013”, and that, in the same reply, the

Io
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) II

Lighthouse Administration specified among ‘‘the chief questions
which appear to call for settlement’, the ‘‘re-instatement of
the Lighthouse Administration in the rights and prerogatives
which have been conferred on it in all the territories now
occupied by the Allied States....”’, etc.

On the other hand, the Lighthouse Administration only
mentioned among the “pecuniary claims which the Company
proposes to put forward” a claim “in respect of the unexpired
period of the concession, up to September 3rd, 1924”.

Be that as it may, the competent sub-committee of the
Financial Commission appointed in 1913 expressly included the
Lighthouse Company, in its report, among those “whose acti-
vities would in future extend to two or more territories’.

In December 1914, the Greek Government informed the
French Government that it had “decided to take over the
management and maintenance of the lighthouses situated
in the zone of the new Greek territories, with its own staff,
as from January ist, 1015”. This decision, which was based
on considerations of neutrality and national defence, was
represented as being in pursuance of an intention which the
Greek Government had cherished for a long time past, but
the execution of which had been delayed by the negotiations
for a settlement with the. Lighthouse Administration. The
latter agreed, in principle, to the operation of the lighthouses
being taken over by the Greek authorities in the Greek terri-
tories. In spite of this measure, the lighthouse dues conti-
nued to be collected in Greek territory by the officials of the
Lighthouse Administration until 1929, when their authority to
collect them was withdrawn by the Greek Government.

Towards the end of 1923, that is to say after the signa-
ture of the Treaty of Lausanne, the Lighthouse Administration
again entered into conversations with the Greek Government
for the settlement of certain questions of detail, and also for
the examination “of the situation which had arisen, as a result
of the Balkan wars and the World War, in certain portions
of Greek territory which fall within our Company’s area”.

This proposal does not appear to have led to any result,
with the exception of an enquiry that was undertaken, on
behalf of the Greek Government, by M. Botassis, its Naval
Attaché at Paris. However, in March 10924, the Greek Director
of Transport (Ministry of National Economy) incidentally
mentioned to the Lighthouse Administration that, in his view,
the concession would expire on September 24th, 1924. This
communication led the Administration to bring the matter to
the notice of the French Government, and in the following
month the question entered the phase of diplomatic nego-
tiations, the French Government supporting at Athens the

2 IT
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 12

claims which the Lighthouse Administration founded on the
renewal contract of April xst/r4th, 1913, for the maintenance
of the concession.

The French Government seems to have gained the impression
that, before September 1924, these diplomatic negotiations had
led to an agreement recognizing in principle the contract of
1913, though further conversations.would have to be pursued
for a settlement of accounts and for the readaptation of the
concessions, Be that as it may, negotiations were resumed in
1925. It was then that the Greek Government for the first
time stated its legal point of view in writing in a note addressed
by M. Rentis, Greek Minister for Foreign Affairs, to the
French Minister at Athens on August 17th, 1925. The Greek
note raised objections concerning the validity of the contract as
against Greece and based not only on points of law but also
upon matters of fact. In the words of the note, “the Greek
Government is obliged to maintain its view that, neither in
fact nor in law, does the contract for the renewal of the French
company’s concession imply any obligation on the part of
Greece, since, neither before nor after the conclusion of Proto-
col XII of Lausanne, did it possess any validity as regards
that country”. It based its opinion more especially on consider-
ations of Turkish constitutional law, from which it was
deduced that the contract of 1013 had not been duly entered
into.

Towards the end of 1926, as no agreement or settlement had
been reached, the French Government for the first time sug-
gested the possibility of “‘submitting the claims of the Light-
house Administration” to the Court. The conclusion of a
Special Agreement with that object in view was delayed,
because recourse was first had to another procedure: an inter-
change of arguments between jurists, designated by the two
Parties, concerning “the question of the validity of the Admin-
istration’s concession’. This procedure having failed, the
French Government, in April 1928, renewed its suggestion that
the dispute should be referred to the Court. The Greek Govern-
ment accepted this suggestion, and in June of that year it com-
municated a draft Special Agreement to the French Government.

As a result of circumstances which do not directly concern
the Court, the negotiations concerning the terms of the
Special Agreement were somewhat protracted, and an agree-
ment between the two Governments was only reached in
April 1931. The Special Agreement was ratified two years later.

The Special Agreement, in addition to Chapter I, which
submits to the Court the dispute as defined above, contains
a second Chapter, providing for subsequent proceedings which
are to follow the delivery of judgment by the Court and the

I2
A./B. 62.-LIGHTHOUSES CASE (FRANCE—GREECE) 13

object of which is the settlement of all pecuniary claims of
the Lighthouse Administration against the Greek Government
or vice versa, as also the determination of the sum payable
for buying out the concession, should the judgment declare
that the contract of April 1st/r4th, 1913, was duly entered
into.

*
ok *

As already stated, the question put to the Court by Article 1
of the Special Agreement is whether the contract of April 1st/
14th, 1913, ‘‘was duly entered into and is accordingly
operative as regards the Greek Government in so far as
concerns lighthouses situated in the territories assigned to
it after the Balkan wars or subsequently”.

In the first place, the precise import of this question must
be determined.

In the course of the written and oral proceedings, the
Parties have debated two points which concern the interpreta-
tion of the question and, in particular, the interpretation of
the words “contract .... duly entered into”. Though agreed
that the Court must examine the question whether the con-
tract of April 1st/r4th, 1913, is valid according. to Ottoman
law, they disagree in regard to whether the Court has also
to consider what binding effect, if any, the contract possesses
as regards Greece in the territories in which certain light-
houses are situated. According to the French contention, the
question, as put by the Special Agreement, does not cover
this point. Furthermore, the Parties disagree in regard to
whether an argument based on the intention of the contracting
Parties as regards the scope of the contract is admissible
under the terms of the question. The French Government
would exclude this argument also.

The Court cannot regard the expression “duly entered
into” as a technical term, invariably possessing the same
signification. Where the context does not suffice to show
the precise sense in which the Parties to the dispute have
employed these words in their Special Agreement, the Court,
in accordance with its practice, has to consult the documents
preparatory to the Special Agreement, in order to satisfy
itself as to the true intention of the Parties.

The first two paragraphs of the preamble to the Special
Agreement throw some light on the import of the question
submitted to the Court; these paragraphs are as follows:

‘Whereas a dispute has arisen between the French firm
Collas & Michel, known as the ‘Administration générale des
Phares de l’Empire ottoman’, and the Government of the Greek
Republic concerning the validity as against Greece of the

13
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 14

contract concluded on April rst/zq4th, 1913, extending the
existing concession ;

Whereas the representations made by the Government of
the French Republic with a view to obtaining from the Govern-
ment of the Greek Republic recognition of the validity of the
said contract extending the concession have proved fruitless,
and as in consequence of the refusal to give satisfaction to
the Lighthouse Administration encountered by the Govern-
ment of the French Republic, a dispute on this subject exists
between the two Governments”.

The first paragraph of the preamble says that the dispute
between the Lighthouse Administration and the Greek Govern-
ment concerns the “validity of the contract as against Greece’.
These terms are sufficiently wide to cover the points above
mentioned, and this is in accordance with the history of the
dispute—as the Court has’ been able to satisfy itself from
the documents. The question is whether the definition of
the dispute between the two Governments, contained in the
second paragraph of the preamble and in the first Article of
the Special Agreement, confines the dispute solely to the
question of the validity of the contract according to Ottoman
law, as is maintained by the French Government.

The second paragraph of the preamble only mentions “the
validity of the said contract” and the fact that “a dispute
on this subject exists between the two Governments’; but
the Court cannot draw any decisive conclusion from the omis-
sion of the words “as against Greece”. The term ‘“validity”
has, in fact, often been used by the Parties in the present
case, even in connection with the effect of the contract as
regards a succession State.

For these reasons, the Court has reached the conclusion
that the precise import of the question put in Article 1 of
the Special Agreement, when read in conjunction with its
context, is not clear.

The contention which the French Government bases on
Article x of the Special Agreement is as follows: the expres-
sion “duly entered into” has been—as is common ground
between the Parties—taken from Article I of Protocol XII,
signed at Lausanne on the same day as the Treaty of Peace
of July 24th, 1923, and bears the same meaning as in that
Article, where it simply means ‘valid according to Ottoman
law”. The Special Agreement, therefore, in putting the ques-
tion whether the contract was “duly entered into”, is merely
submitting to the Court problems of Ottoman law. This, the
French Government contends, is still more evident because
Article z of the Special Agreement goes on to say: “and is
accordingly operative as regards the Greek Government” ;

14
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 15

hence the effectiveness of the contract as regards Greece is
to be considered simply as a consequence of its validity under
Ottoman law. This consequence follows, it is held, directly
from Article 9 of Protocol XII, which provides for the subro-
gation of the Balkan States as regards concessions granted by
the Ottoman Government.

The Court, in this connection, has to consider Protocol XII.
This instrument comprises two. sections, each dealing with
a different question. The first section (Art. 1-8) deals only
with territories remaining Turkish, so that no question as to
State succession arises; the latter problem, on the other hand,
is dealt with in the second section (Art. 9-13), which concerns
the territories detached from Turkey. Accordingly, it follows
that the expression “duly entered into” in the first section
cannot be meant to cover enforceability against a succession
State. The expression was, in point of fact, construed in the
competent committee of the Lausanne Conference as meaning
that “all formalities must have been fulfilled’. Without con-
sidering for the moment what the required formalities are, the
Court is content to observe that Article r of Protocol XII
relates solely to the fulfilment of the requirements of Ottoman
law.

As will be seen, it is not, however, certain that the Greek
Government has interpreted this expression in Article x of
the Special Agreement in the precise sense which the Court
has just attributed to it. To suppose that it did so, it would
have to be assumed that that Government had abandoned its
previous standpoint, which was based, inter alia, on arguments
of international law.

Moreover, the history of the Special Agreement does not
support such an assumption.

The first draft of the Special Agreement was framed by the
Greek Government; it is therefore to be assumed that its
previous standpoint in regard to the subject of the dispute
was expressed therein. What this standpoint was appears from
the following passages: in Article x of this first draft, the
dispute is described as concerning “‘the validity of the contract
as against Greece’. This expression, which was subsequently
inserted in the first paragraph of the preamble of the Special
Agreement as finally adopted, does not refer—as has already
been pointed out—only to formalities of Turkish law, but also
to the binding force of the contract as against Greece. Article 2
of the Greek draft, which formulated the question for submis-
sion to the Court, was differently worded: “The Court will
be called upon to say whether the contract .... was duly entered
into and is accordingly operative as regards Greece, in so far
as concerns lighthouses situated in the territories assigned to
her after the Balkan wars or subsequently.’’ Nevertheless,

15
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 16

it is impossible to infer therefrom that the question thus stated
covers a part only of the various problems under discussion,
for, according to Article I, it is ‘‘the dispute”, that is to say
the whole dispute, which is referred to the Court. The terms
of Article 2 are not inconsistent with this interpretation. The
later phrase (“in so far as concerns lighthouses situated in
territories assigned to her after the Balkan wars or subse-
quently’) was preceded by a comma (which again appears
in the submissions of the Greek Case) and has therefore to
be read in conjunction with the words “duly entered into”.
Accordingly, there was a reference to the problem of inter-
national law whether Greece was obliged to succeed Turkey
in this contract.

On the other hand, the French counter-proposal placed in
the preamble the description of the subject of the dispute
which had been given in Article x of the Greek draft. It
did not reproduce in its new Article x the words: “in so far
as concerns lighthouses’, etc. This rearrangement might indeed
be taken as signifying an intention to modify the Courts
terms of reference, ie. by submitting to it only a part of
the dispute. It might appear that the binding effect of the
contract as regards Greece was accepted as the logical conse-
quence of the validity of a contract “duly entered into”.
At the representations of the Greek Government, the phraseo-
logy of Article 2 of the Greek draft was however reinserted
(except the comma) in Article r of the Special Agreement as
finally adopted, and by thus restoring the reference to the
territories in question, the Parties would appear once more to
have had in mind international considerations. The other
changes. made, principally in the preamble of the Special
Agreement as finally adopted, do not seem to have modified
the subject of the dispute, and are explained by anxiety to
make it quite clear that the dispute is between two States ;
this appears from the diplomatic correspondence.

The history of the Special Agreement therefore does not
exclude the possibility that the words “duly entered into”
in Article x of that document, read in conjunction with the
whole of the context, imply, besides a condition regarding
conformity with Ottoman law, a condition regarding conform-
ity with international law. Accordingly, the Court has decided
not to omit from consideration the objections of an inter-
national character opposed by the Greek Government to the
arguments of the French Government. As will be seen here-
after, the inclusion of these objections within the Court’s
purview does not modify the conclusions reached by the Court
on the basis of other considerations.

In arriving at these conclusions, the Court has not lost
sight of the statement made by the Parties that they were

16
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 17

in agreement that the words ‘‘duly entered into”, in Article x .
of the Special Agreement, were taken from Article 1 of Pro-
tocol XII, and that these words have the same sense in the
Special Agreement as in the Protocol. The Court accepts
the view that the words were in fact borrowed‘ from Pro-
tocol XII. It may also be safely assumed that, when the
Special Agreement was concluded, each of the Parties to
that Agreement thought that the words “duly entered into”
in Article x were being employed in the same sense in which
they are used in Protocol XII. But the Court considers
that the two Parties do not attribute the same meaning to
these words in the Protocol. There is no doubt that the
Greek Government regarded the words in Protocol XII as
wide enough to cover the consideration based on international
law on which that Government relied, while the French Govern-
ment regarded. the words in Protocol XII as indicating
. only the question whether the formalities required by Turkish
law had been complied with. Accordingly, it is clear that,
even if each Party thought that the words ‘duly entered
into” in the Special Agreement were used in the same sense
as in Protocol XII, there was no agreement between them as
to what the words meant in the Special Agreement, because
they were attributing different meanings to the words in
Protocol XII. For the same reason, the Court cannot, after
its finding that the words “duly entered into” in Protocol XII
bear a meaning other than that which the Greek Government
attributed to them, hold that the Greek Government has
agreed that, in the Special Agreement, the words bear a
meaning which the Court holds to be their correct interpreta-
tion in Protocol XII.

With regard to the argument based by the Greek Govern-
ment on what, in its submission, was the intention of the
Parties, according to the contract of April xst/r4th, 1913,
namely not to renew the concession in so far as concerns
lighthouses situated in territories occupied by the troops of
the Balkan Allies—the Court also considers it right to exa-
mine this argument. For, according to the Greek Govern-
ment, this point formed the subject of the discussion between |
jurists which took place before the conclusion of the Special
Agreement, and this objection has in fact been considered in
the French Case. It is possible to find a reference to this
question of the intention of the Parties with regard to the
scope of the contract in the text of the Special Agreement
itself, if the passage “in so far as concerns lighthouses situated

17
A./B. 62.— LIGHTHOUSES CASE (FRANCE—GREECE) 18

in the territories assigned to it after the Balkan wars or
subsequently’’—which was inserted at the instance of the
Greek Government—be read in conjunction with the expression
“contract .... duly entered into”. The Court cannot therefore
give an affirmative answer to the question put by the Special
Agreement without satisfying itself that the contract of
April 1st/r4th, 1913, covered, in the intention of the Parties,
lighthouses situated in the territories which have now become

Greek.

*
* *

There are therefore three questions of substance with which
the Court must deal: it must determine the intention of the
Parties as regards the scope of the contract ; it must consider
whether this contract was “duly entered into” according to
Ottoman law, and whether it is enforceable against Greece.

*

In determining the scope of the contract of April xst/r4th,
1913, the Court adopts the standpoint that the contract was
one for the renewal of a previous concession. The intention
of the Parties to this contract was to maintain for a further
period of twenty-five years the relations existing between
them under the 1860 concession, with some modifications of
detail expressly laid down. Article 1 of the contract accord-
ingly provides that “the lighthouse concession still in force

. is granted as from 22 Aghostos, 1340/September 4th, 1924,
and in accordance with the existing general conditions”.

This statement is important in connection with the ascer-
tainment of the intention of the Parties as regards the scope
of the 1913 contract. If the old concession was renewed,
it may be presumed, failing proof to the contrary, that the
scope of the 1913 contract remained identical with that of
the old concession.

Accordingly, the onus of proving a contrary intention of
the Parties, ie. an intention to limit the scope of the conces-
sion to lighthouses which were to remain Turkish, rests on
the Greek Government, and the Court does not consider that
that Government has furnished adequate proof of such an
intention.

The Greek Government argues that it is impossible that
the Parties should have meant to include in their contract
the occupied territories, the cession of which had already
been agreed to by the Sultan in his negotiations with the
mediating Powers as early as April 1st, 1913. It adds that
the Ottoman Government was aware that, under international
law, it could no longer grant a concession in the occupied

18
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 19

territories. Finally, it maintains, the attitude of the conces-
sionnaires themselves who, prior to 1924, had never adduced
against Greece the renewal granted, indicates that it was not
their intention in 1913 to acquire rights in respect of light-
houses in occupied territory.

These arguments are not convincing. In point. of fact,
the two Parties to the contract had every interest in not
reducing the previous scope of the concession, so as to avoid
prejudicing either the prospective receipts of the concession-
naires or the aims of the Ottoman Government, which latter
was anxious to obtain as large an advance as possible against
its share of the receipts derived from the concession. More-
over, the negotiations had already been begun before the
Balkan war and, if the intention had been to restrict the
scope of the contract, as compared with the concession in
force, the fact would, no doubt, have been expressly stated.
Finally, the fate of all the occupied territories was not yet
decided—for the mediating Powers were to dispose of the islands
—and the islands of Imbros, Tenedos and Castellorizo were
in fact restored to Turkey. If the Parties had really meant
to except the territories occupied on April ist/r4th, 1913,
there would have been, as regards the occupied territories
subsequently restored to Turkey, a curious uncertainty as
to the scope of the renewed concession. Even if there had
been a generally accepted rule of international law forbidding
a sovereign State from taking measures in respect of occupied
territory, the Parties to the contract of 1913 might have had
in view the possibility. that special provisions in the future
peace treaties would subsequently accord recognition to the
concessions. As regards the attitude of the concessionnaires,
they ‘submitted their renewal contract to the Financial Com-
mission on Balkan Affairs which sat in Paris in r9r3. That
they omitted, thereafter, to insist upon the rights pertaining
to them as a consequence of the renewal, is probably to be
ascribed to the unfavourable stipulations in the Treaty of
Athens (Art. 5) relating to vested rights; it is true that
this stipulation was not of a definitive character, since it was
declared to be without prejudice to the future action of the
Financial Commission; the latter, however, did not continue
its work.

The scope of the contract of April 1st/r4th, 1013, is not
therefore limited by reason of the fact that certain territories
were occupied at that date by the Balkan Allies.

%

The Court has next examined the question whether ‘the
contract” of April ist/14th, 1913, was “duly entered into”
according to Ottoman law.

3 19
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 20

The Special Agreement raises the question of the validity
of the “contract”? and not of the concession; for the conces-
sion is directly granted in the above-mentioned Article 1 of
the contract, and nowhere is reference made to any special
act performed by Turkish authorities—in addition to the
conclusion of the contract—in order to render the conces-
sion complete in all respects. It is true that a contract
granting a public utility concession does not fall within the
category of ordinary instruments of private law, but it is not
impossible to grant such concessions by way of contract, and
some States have adopted the system of doing so. This was
the case in Turkey, as appears from the law of June roth/
23rd, 1910, concerning public utility concessions. The provisions
of this law, and particularly Article 5, leave no room for
doubt that the grant of concessions took the form of contracts
made between the concessionnaires and the Government. In
principle, and with the exception of the cases enumerated in
Article 1, which will be dealt with later, the Government
required a special authorization given by legislative enact-
ment. Nevertheless, the contract alone—which was made
where necessary in virtue of a law—constituted the imme-
diate title for all the private and public rights of the conces-
sionnaire. The constant references to ‘‘concessionary contracts”
in Protocol XII of Lausanne are therefore justified, and this
expression is also found in the preparatory work of the com-
petent committee of the Lausanne Conference. Accordingly,
all that has to be done is to consider whether the contract
is valid, ie. to ascertain whether all formalities have been
fulfilled .and, in particular, that legislative authorization, if
that was necessary, has been given.

The contract of April 1st/r4th, 1913, is signed by the Minister
of Finance on behalf and under the authority of the Ottoman
Government.

It has been suggested that the Court should content itself
with recording this circumstance and declare that the contract
is therefore “duly entered into”, because the Ottoman Govern-
ment had power to grant a renewal of the lighthouse conces-
sion on its own, authority.

It is true that Ottoman law does not always require the
participation of the legislature in the granting of a conces-
sion; Article r of the law of June roth/23rd, 1910, concerning
public utility concessions, provides, according to the complete
official translation produced to the Court by the Greek
Government, that:

[Translation by the Registry.| “The grant of concessions for
works of public utility will be made directly by the executive
authority : (1) if they do not involve any kind of financial
obligation—present or future—on the part of the State and:

20
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 21

will not necessitate selling or disposing of public movable or
immovable property ; (2) if they do not concern a public service
provided for in the budget; (3) if they do not grant privileges
other than those specified in this law; (4) if they do not neces-
sitate the amendment of legislation in force; (5) if the granting
of them depends on the legislation to be enacted for the organ-
ization of municipalities in the vilayets and is not within the
jurisdiction of the local Government.”

In view of the Decree Law of April 1st/r4th, 1913, which
expressly authorizes the making of the contract. renewing the
lighthouse concession, the Court feels that it must deal first
with this law and with the questions raised regarding its
validity. Only if the said law were found to be invalid
would it be necessary to consider whether the terms of the
concession are such as to allow the Ottoman Government to
dispense with the co-operation of the legislative authority, as
provided by the law of June roth/23rd, xoxo.

The law of April 1st/r4th, 1913, was not the result of parlia-
mentary legislation. It was issued by the Government, in
virtue of the powers conferred upon it by Article 36 of the
Ottoman Constitution. It was what is commonly called in
Turkey a provisional law, or a decree law. Article 36 of the
Ottoman Constitution, as then in force, was, according to the
(French) translation which the Parties have agreed to accept,
to the following effect :

[Translation by the Registry.] “In case of urgent necessity,
if the General Assembly is not sitting and if time does not
allow of the Chamber being convened to pass a law for the
protection of the State against some danger, or for the preser-
vation of public safety, the Minister may adopt measures
having the force of a provisional law until Parliament is con-
vened, provided always that such measures are not contrary
to the terms of the Constitution and that they are sanctioned
by an Imperial ivadé and submitted to the General Assembly as
soon as the latter meets.”

It is common ground that the Ottoman General Assembly
was not sitting on April 1st/r4th, 1913, that none of the provisions
of the Decree Law of that date was contrary to the Ottoman
Constitution, and that the said Decree Law received Imperial
sanction. The dispute therefore concerns the question whether
the other conditions laid down in the above-quoted Article 36
were complied with, that is to say, whether there was
“urgent necessity”, and whether the measure was one ‘for
the protection of the State against some danger or for the
preservation of public safety”, and finally whether the Decree
Law was thereafter duly submitted to the Turkish Parliament.

The Greek Government contends, in the first place, that an
authorization to renew a concession expiring in 1924 could not,

2I
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 22

in 1913, be a matter of urgency, or of importance for the
public safety.

In regard to this point, the Court observes as follows:
The powers conferred on the Ottoman Ministry by Article 36
of the Constitution are genuine legislative powers. As Par-
liament was not always in session, and as extraordinary
sessions were difficult to convene, owing to the vast extent of
the Empire, the requirements of the State made it necessary
that the Government should be invested with supplementary
legislative powers. It is true that these extraordinary legisla-
tive powers were not unlimited ; a decree law could not make
changes in the Constitution, and two checks were provided:
first, sanction by the Sultan, and then submission to Parlia-
ment. But any grant of legislative powers generally implies
the grant of a discretionary right to judge how far their
exercise may be necessary or urgent; and the granting of
this right to the executive authority was particularly neces-
sary for the attainment of the object set forth in Article 36.
It is a question of appreciating political considerations and
conditions of fact, a task which the Government, as the
body possessing the requisite knowledge of the political situa-
tion, is alone qualified to undertake. It follows from the
foregoing that the Ottoman Government, in the first instance,
and, subsequently, the Turkish Parliament, were alone qualified
to decide whether a given decree law should, or should not,
be issued. The Court is, therefore, not called upon to consider
whether the Decree Law of April xst/r4th, 1913, complied
with the conditions rendering its issue expedient according to
the terms of the Ottoman Constitution.

Even, however, if such an examination were to be under-
taken, good reasons might be given in favour of the view that
the Decree Law was valid. In Turkish constitutional prac-
tice, the field of extraordinary legislation has been a very
wide one, as is shown by some legal opinions which were
appended to the French Case and Counter-Case, and the con-
tents of which have not been contested by the Greek Govern-
ment. It is to be noted, according to these opinions, that
even after the Reform of 1909, there were periods during
which three-quarters of the legislative acts promulgated were
decree-laws, though many of them related to matters which
in other countries are dealt with by parliamentary legislation.
This practice appears to have received general and tacit assent;
Parliament never made it a ground of remonstrance to the
Government. Moreover, the renewal of the lighthouse con-
cession was essential in order to obtain the advance of
£500,000 (T.); and the Ottoman Treasury must have been in
urgent need of this loan, having regard to the position of the
Empire at the end of the Balkan wars.

22
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 23

The Decree Law of April rst/r4th, 1913, must, therefore, be
accepted as having been regularly issued, from the standpoint
of Article 36 of the Ottoman Constitution. Both Parties —
as also the Court—interpret the Constitution in the sense that
a decree law which is regularly issued, immediately acquires
full legal force. .

However, the Greek Government has raised in this connec-
tion a second objection to the validity of the renewal of
the concession. It contends that the validity of a decree
law is subordinated to a condition by which it is annulled
if the decree law is not submitted to Parliament at the next
session or if Parliament should fail to ratify it. The Decree
Law of April 1st/14th, 1913, was not ratified until the winter of
1914-1915—a time when a large part of what is now Greek
territory had been formally ceded, and when, in consequence,
the Turkish Parliament no longer had any jurisdiction over
that territory. It had therefore become impossible, according
to the Greek Government, for Parliament to ratify a decree
law affecting the ceded territories, and that impossibility of
ratifying amounted to the same thing as non-ratification.
Hence, the Greek Government argues, the Decree Law of
April 1st/r4th, 1913, had ceased to possess the force of law.

The Court cannot agree with these deductions. First, it
finds that there is no good reason for importing the idea of
a nullifying condition into the clauses of the Constitution
governing decree-laws. No comparison is possible between
the promulgation of a decree law and the making in private
law of a contract which was subject to some condition. The
* decree law presents a form of legislation, imposing legal rules
which are immediately valid and which only differ from ordin-
ary laws in one respect, namely that they are issued by
the Government, and that their validity may subsequently
be terminated by a decision of Parliament. The existence of
the latter possibility gives decree-laws a provisional char-
acter, but it does not affect the legal force they enjoy up till
the time of their rejection by Parliament. The Sultan sanc-
tioned the Decree Law of April 1st/14th, 1913, using a formula
which is reproduced (in the French text) in a translation, from
a Turkish official source, submitted by the Greek Agent; this
translation has encountered no objection on the part of the
French Agent.

[Translation by the Registry] “I have ordered that the
present draft law, which shall be submitted on the opening
of Parliament for ratification by that body, be added to the
laws of the State.”

What is described here as ratification—though the expression
is not found in the translation of Article 36 of the Constitution

23
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 24

furnished to the Court—is not an act that is indispensable
in order to elevate a law from a supposedly lower to a higher
plan of legal effectiveness. It is not a formal condition upon
the fulfilment of which the legislative value of the decree
law is dependent. The refusal of Parliament to ratify would
alone be relevant; when Parliament takes no action, the
decree law remains intact and continues in force, in the same
way as any other ordinary law. It should be noted, in this
connection, that no period was laid down within which Parlia-
ment had to give its decision. It cannot, therefore, be con-
tended that the alleged nullity of the ratification, owing to the
loss of territorial jurisdiction over the districts in question,
can have deprived the decree law of its status as a law.
There was no. refusal to ratify; there is therefore no need
to examine whether such a refusal would have had retrospec-
tive effects, perhaps extending even to rights acquired under
the régime of the decree law. It-also becomes unnecessary to
examine whether the cession of the provinces to Greece really
incapacitated the Turkish Parliament from ratifying a decree
law which, as a fact, merely authorized the Minister of Finance
to conclude a contract disposing, amongst other property, of
lighthouses situated in those provinces. Ratification, in the
case in point, was rather a confirmation of the Government’s
action than the imposition of legal provisions, applicable
to the future, on the inhabitants of the ceded territories.
Moreover, according to Turkish law, the decree law itself
was not tainted with nullity because some of the territories
covered by the contract which it authorized were in enemy
occupation. In constitutional law nothing short of definite
cession can produce legal effects prejudicing the rights of the
lawful sovereign. The question, which arises in international
law, whether the Succession State can be bound by a contract
or a law made during military occupation lies entirely outside
this subject.

The Decree Law of April 1st/14th, 1913, was therefore’ valid
in Turkish law. Consequently the contract renewing the
concession was also valid between the Parties to it, notwith-
standing the fact that the formality of ratification of the
decree law by the Turkish Parliament did not take place until
after the cession of some of the territories covered by the
contract ; accordingly, no formality necessary to render the
contract valid remained unfulfilled.

*

Nor does the Court arrive at a different conclusion as a
result of its examination of the question of international
law whether the contract of April 1st/14th, 1913, is “operative
as regards the Greek Government”. The question whether,

24
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 25

according to the general rules of international law, the terri-
torial sovereign is entitled, in occupied territory, to grant
concessions legally enforceable against the State which sub-
sequently acquires the territories it occupies, was debated at
some length between the Parties. Both of them adduced the
terms of the Conventions of 1899 and 1907 concerning the
laws and customs of war on land, besides precedents, and
the opinions of certain authors. —

The Court does not think it necessary to express its opin-
ion on this point. In the present case, it has before it a
treaty clause, namely Article 9 of Protocol XII of Lausanne.

That Article reads as follows:

“In territories detached from Turkey under the Treaty of
Peace signed this day, the State which acquires the territory
is fully subrogated as regards the rights and obligations of
Turkey towards the nationals of the other contracting Powers
and companies in which the capital of the ‘nationals of the
said Powers is preponderant, who are beneficiaries under con-
cessionary contracts entered into before the 29th October, ror4,
with the Ottoman Government or any local Ottoman author-
ity. The same provision will apply in territories detached
from Turkey after the Balkan wars so far as regards conces-
sionary contracts entered into with the Ottoman Government
or any Ottoman local authority before the coming into force
of the treaty providing for the transfer of the territory. This
subrogation will have effect as from the coming into force
of the treaty by which the transfer of territory was effected
except as regards territories detached by the Treaty of Peace
signed this day, in respect of which the subrogation will
have effect as from the 30th October, 1918.”

This Article lays down that the Succession States are
subrogated as regards concessionary contracts entered into
with the Ottoman Government prior to October 2gth, 1914,
in so far as concerns the territories detached from Turkey
under the Treaty of Lausanne, and prior to the coming into
force of the respective treaties of peace, in so far as concerns
territories detached from Turkey after the Balkan wars. The
Greek Government is not therefore entitled to object to its
subrogation as regards the contract of April rst/r4th, 1913,
on the ground that certain territories were occupied by Greek
troops at that date. Article 9 of Protocol XII naturally
presumes that the concessionary contracts in question are
valid contracts. The only. objections to subrogation which
it admits are those based on the date or the validity of a
concessionary contract. :

In regard to the question of date, the contract under consider-
ation was concluded on April 1st/r4th, 1913, whereas the Treaty -
‘of Athens, which assigned some of the territories in question to
‘Greece, did not come into- force until November 16th/20th,

25
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 26

1913. Therefore, in the present case, the date of the conces-
sionary contract cannot be a ground of objection to the
subrogation of the Greek Government.

In regard to the validity of the concessionary contract,
that question has to be considered from the standpoint of
Ottoman law; and from that standpoint the Court has already
recognized that the ratification of the decree law empowering
the Government to enter into the contract was not necessary
to render the latter valid. Neither does Article g of Proto-
col XIT require, as a condition for the subrogation of the Suc-
cession State, that the decree law should have been approved
by the Turkish Parliament before the material date.

*

The Greek Government has further pleaded three objections
to the consequences of applying Article g of Protocol XII.
In the first place it has adduced Article 10 of the aforesaid
Protocol, which states as follows:

“The provisions of Section I of this Protocol, except Articles 7
and 8, will be applied to the contracts referred to in Article 9.
Article 3 will only have effect in detached territories where the
property or the services of the concessionnaires were utilized
by the State exercising authority in such territory.”

Founding itself on this Article, the Greek Government draws
attention to Article 1 of the Protocol, which provides that:

“Concessionary contracts and subsequent agreements relating
thereto, duly entered into before the z2gth October, 1914,
between the Ottoman Government or any local authority, on
the one hand, and nationals (including companies) of the
contracting Powers, other than Turkey, on the other hand,
are maintained.”

In order to be regularly concluded, a concessionary contract
must therefore, in the Greek Government’s contention, satisfy
the requirements of international law, and the contract of
April ist/z4th, 1913, does not satisfy them in that Govern-
ment’s view, because of the special circumstances in which
it was made.

In this connection, the Court recalls that the two sections
of Protocol XII are concerned with two different problems, —
and that Article 1, having regard to the ground covered by
the first section of the Protocol, only stipulates for validity
under Ottoman law. As Article g of Protocol XII also
presumes that the contract is valid—which amounts to
requiring that it must have been duly entered into—the
reference to Article Ir need not be taken into account in
interpreting Article 9. This solution is in accordance with

26
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 27

the terms of Article 10. For Article 10 lays down that ‘the
provisions of Section I .... will be applied to the contracts
referred to in Article 0”. The “provisions” of Section I are
to be applied to the contracts referred to in Article 9, that
is to say, to “contracts entered into’, in so far, of course,
as such application is reasonable. The provisions of Article x
cannot apply to Article 9 at all, because they relate to a dif-
ferent situation, as has been shown in the present judgment.

If, applying Article 1 of Protocol XII, it were possible to
argue that concessions granted by the sovereign during the
occupation were not operative as regards the Succession State,
the provision in the second sentence of Article 9; which fixes
the day of the coming into force of the treaty of peace as the
material date, could never be applied in practice.

Secondly, the Greek Government argues that the treatment
of concessions is a question which was definitely settled by
the Treaty of Athens—Article 5 of which requires Greece
to respect rights acquired before the occupation—and that
it could not therefore be re-opened at Lausanne. In this
connection it must be pointed out, to begin with, that the
second paragraph of the same Article states that the terms
of that Article in no way prejudice any decisions which
might be rendered by the Financial Commission on Balkan
Affairs; furthermore, it is always open to parties to amend
earlier treaties.

Finally, the Greek Government has endeavoured, without
success, to show that there are adequate grounds for barring
the application of the rule laid down in Article g of Proto-
col XII—i.e. the rule under which the contract of April xst/r4th,
1013, has been held to be enforceable against Greece. True,
Article 9 discriminates between the Principal Allied Powers
and the Balkan States in that the former, as successors to
the territories detached from Turkey by the Treaty of Lau-
sanne, only recognize concessions granted prior to the opening
of hostilities by Turkey in the war of 1914-1918, whereas the
latter have to respect concessions granted up to the time
when the territories were formally ceded. This discrimina-
tion was, however, intentionally made and it does not suf-
fice, in itself, to support objections to the Article. Nor can
the Court accept the Greek Government’s objection that it
signed Protocol XII in the belief that it did not in practice
differ from the terms of the Treaty of Athens. It has already
been pointed out in another connection that the Greek Gov-
ernment had been aware since 1913 of the existence of the
renewal contract. If the concessionnaires subsequently observed
a certain reticence, this may be ascribed to the unfavour-
able solution which the Treaty of Athens appeared to

4 27
A./B. 62.—LIGHTHOUSES CASE (FRANCE—-GREECE) 28

have adopted. No express renunciation was ever made by
the concessionnaires. The fact that the terms of the Protocol
would differ from those of the Treaty of Athens might have
been anticipated by the Greek Government, more especially
since a similar alteration had already been made three years
earlier in the Treaty of Sèvres.

%
* -*#

Before giving an affirmative reply, for the foregoing reasons,
to the question referred to it, the Court would allude to one
other point.

In founding its decision on Article g of Protocol XII,
the Court has not overlooked the fact that the words used
in that Article differ somewhat from those used in the first
Article of the Special Agreement: thus, the Special Agreement
speaks of ‘“territories which were assigned’? to Greece ‘after
the Balkan wars or subsequently”; whereas Article g refers
to “territories detached from Turkey’ either “under the
Treaty of Peace” (of Lausanne) or ‘after the Balkan wars”.
The Court is, however, of opinion that in both texts and in
so far as concerns Greece the same territories are meant,
all the more so, since neither Party, when discussing Article 9,
has suggested that there is any substantial difference between
the territories referred to in these two texts.

Moreover, the Court holds that the Special Agreement
_only requires it to decide on a question of principle, and
that it is not called upon to specify which are the terri-
tories, detached from Turkey and assigned to Greece after
the Balkan wars or subsequently, where the lighthouses in
regard to which the contract of 1913 is operative are situated.
It is moreover all the more necessary to make this reservation
because the Parties have not argued before the Court the
questions of fact and of law which might be raised in that
connection and which the Court has not been asked to decide.

FOR THESE REASONS,
The Court,
by ten votes against two,

decides

that the contract of April 1st/r4th, 1913, between the French
firm Collas & Michel, known as the “Administration générale

28
A./B. 62.—LIGHTHOUSES CASE (FRANCE—GREECE) 29

des Phares de l’Empire ottoman’, and the Ottoman Govern-
ment, extending from September 4th, 1924, to September 4th,
1949, concession contracts granted to the said firm, was duly
entered into and is accordingly operative as regards the Greek
Government in so far as concerns lighthouses situated in the
territories assigned to it after the Balkan wars or subsequently.

This judgment has been drawn up in French in accord-
ance with the terms of Article 39, paragraph 1, second
sentence, of the Statute of the Court, the Parties having
agreed in the Special Agreement that the case should be con-
ducted in French.

Done at the Peace Palace, The Hague, this seventeenth
day of March, one thousand nine hundred and thirty-four,
in three copies, one of which is to be placed in the archives
of the Court and the others to be forwarded to the Govern-
ments of the French and Greek Republics respectively.

(Signed) CEctL J. B. Hurst,
President.

(Signed) À. HAMMARSKJÜLD,
Registrar.

MM. ANZILOTTI, Judge, and SEFERIADES, Judge ad hoc, declare
that they are unable to concur in the judgment given by
the Court and, availing themselves of the right conferred
upon them by Article 57 of the Statute, have appended to
the judgment the dissenting opinions which follow.

Jonkheer van EvysiNGA, Judge, while in complete agreement
with the operative clause of the judgment, declares that he
is unable to accept certain of the grounds on which it is
based.

(Initialled) B. H.

C. J.
(Initialled) À. H.

29